Annual Report of Ombudsperson for Human Rights: Summary

THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS on the state of observance of human and citizens' rights and freedoms

GRAPHIC SUMMARY

2016

Kyiv – 2016

... ... ...

Annual Report of the Ukrainian Parliament Commissioner for human rights on the state of observance of human and citizens’ rights and freedoms. Summary 2016 / Ukrainian Parliament Commissioner for human rights. – K., 2016. – p. 56. ...

Reproduction in full or in part of the materials of this publication should contain a reference to this publication

The report is published under the “Democratization and human rights in Ukraine” Project implemented by UNDP and funded by the Ministry of Foreign Affairs of Denmark.

The views and conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the Ministry of Foreign Affairs of Denmark, the United Nations Development Programme, or other UN agencies.

© Secretariat of the Ukrainian Parliament Commissioner for Human Rights, 2015.

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS GRAPHIC SUMMARY

Kyiv – 2016

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CONTENTS

CONTENTS Introduction of the Ukrainian Parliament Commissioner for Human Rights ������������� 5 SECTION 1. THE RIGHT OF ACCESS TO PUBLIC INFORMATION �������������������������������������� 7 SECTION 2. THE RIGHT TO PERSONAL DATA PROTECTION ������������������������������������������ 11 SECTION 3. FREEDOM FROM DISCRIMINATION ������������������������������������������������������������ 15 SECTION 4. THE RIGHT TO A FAIR TRIAL ������������������������������������������������������������������������ 18 SECTION 5. SPECIAL PROCEEDINGS OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS ������������������������������������������������������������������������� 21 SECTION 6. IMPLEMENTATION OF THE NATIONAL PREVENTIVE MECHANISM ���������� 23 SECTION 7. PROTECTION OF THE RIGHTS OF UKRAINIAN CITIZENS ABROAD. CASES OF O. SENTSOV, O. KOLCHENKO, N. SAVCHENKO AND OTHERS ���������������������������������������� 26 SECTION 8. OBSERVANCE OF THE RIGHTS OF INTERNALLY DISPLACED PERSONS ��� 29 SECTION 9. ENSURING CONSTITUTIONAL RIGHTS AND FREEDOMS OF MILITARY STAFF ������������������������������������������������������������������������������������������������������� 38 SECTION 10. OBSERVANCE OF THE SOCIO-ECONOMIC RIGHTS ���������������������������������� 40 SECTION 11. ENSURING EQUAL RIGHTS AND OPPORTUNITIES FOR WOMEN AND MEN ������������������������������������������������������������������������������������������������������������������������ 44 SECTION 12. ENSURING RIGHTS OF THE CHILD ������������������������������������������������������������ 46 SECTION 13. STATISTICAL INFORMATION ON PETITIONS TO THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS IN 2015 ����������������������������������100

INTRODUCTION

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INTRODUCTION Analysing the events that were crucial for assessing the state of observance of human rights in 2015, it is worth recalling such key challenges as the violation of the right to life that occurred because of the events in the East of Ukraine, the flagrant violations of human rights in the Autonomous Republic of Crimea, an increasing number of IDPs, the significant worsening of socio-economic conditions of the citizens of Ukraine, the violation of fundamental rights of our fellow citizens who were thrown in prison in Russia because of political persecution, kidnappings etc.

On the other hand, a special emphasis should be put on the approval by the Presidential Decree of a fundamental document whose preparation brought together both government officials and human rights groups – the National Strategy in the sphere of human rights, whose implementation should unite all branches of government and civil society in Ukraine around a common goal – building a state where human rights and fundamental freedoms are the top priority.

Clearly, it is necessary to analyse and draw conclusions about the events that caused considerable public response, and were accompanied by violations of fundamental rights and freedoms in order to prevent human rights violations in the future. They are events of August 31, 2015 outside the parliament, and the criminal prosecution with evidence of political implications, the lack of reforms in the health system, which leads to significant violations of the right to life, and the failure to revise the main socio-economic indicators, which adversely affects the life of every Ukrainian, the lack of a strategic vision on how to return the temporarily occupied Crimea and Donbas under the Ukrainian control. The analysis of these as well as other events and factors has been made and is reflected in this document.

However, this year’s report on the state of observance of human rights and fundamental freedoms opens by subjects that give reasons to expect a better future and a hope to overcome corruption which is one of the major factors of human rights violations in this country. These issues are crucial for the implementation of the European vector of the country development, including access to public information, personal data protection and the fight against all forms of discrimination.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

We have made conclusions from our last year experience and we are ready to move forward to the goal sought by every Ukrainian – the level of protection of human rights must meet the European standards. The key to success in this direction should be to combine the efforts of civil society and government in order to achieve a better standard of living, based on respect for dignity, rights and freedoms.

I hope that the conclusions and recommendations prepared in close cooperation with the civil society will serve as a basis for further actions to promote human rights and freedoms in Ukraine.

Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights March 2016.

The right of access to public information

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THE RIGHT OF ACCESS TO PUBLIC INFORMATION IN 2015, THE COMMISSIONER:

Reviewed 1772 complaints about violation of the Law of Ukraine «On Access to Public Information»;

Made 184 administrative offence records in the area of access to public information under the authority to draw up administrative offense records (18 offenses were envisaged at the time of transfer of powers and 17 new offenses were added);

Filed 89 requests to restore the right to access to public information;

Initiated development of two comprehensive laws on improvement of legislation on access to public information (draft law of Ukraine «On amending certain laws of Ukraine on access to public information in terms of improvement of certain provisions» (Registration № 2913), Draft Law of Ukraine «On amending code of Ukraine on administrative offences to strengthen state control over observance of the right to access to public information, protection of personal data and applications of citizens» (Registration №2043a);

Conducted a series of trainings for judges of administrative courts and of general jurisdiction;

In partnership with public activists created the «Ombudsman +» platform, which includes seven powerful NGOs: Centre for Political Studies and Analysis, Ukrainian Independent Centre for Political Research, Association of Ukrainian Monitors of Human Rights in Law Enforcement, Media Law Institute, Vinnytsya Region NGO «Public studio», Zaporizhzhya regional NGO «National Defence», NGO «Philosophy of Heart» and the NGO «Regional Press Development Institute»;

4 large scale monitoring campaigns in the framework of the Supported

Ombudsman + platform to evaluate: • observance of the right to access at the local level: by regional state administrations, regional councils, city councils of regional centres (NGO Media Law Institute); • observance of the right to access by the law enforcement agencies: 43 agencies were reviewed at the central and local levels (Association of Ukrainian Monitors of Human Rights on Law Enforcement); • level of openness of city councils (120 councils) in the context of responding to requests for information as well as disclosure of the required public information on the official websites.

(NGO «Centre for Political Studies and Analysis»);

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

compliance of official websites of state agencies and local governments (173 websites) with legislation in force to support the implementation of e-governance in Ukraine (NGO «Regional Press Development Institute»)

THE ISSUES RELATED TO POWERS TO DRAW UP ADMINISTRATIVE OFFENSE RECORDS BY THE AUTHORIZED EMPLOYEES OF THE SECRETARIAT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS •

No transition period for power handover from the prosecutor’s office to the Commissioner;

•

o budget support for the new powers in terms of expanding staff which includes n 15 persons today and does not envisage any regional coverage;

•

i nconsistency of the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights» with the legislation on the exercise of new powers;

•

deficiencies of the Code of Ukraine on Administrative Offenses that impedes the efficient exercise of powers in terms of drawing up administration offense records.

ISSUES OF ACCESS TO PUBLIC INFORMATION: 1. Imperfection of legislative provisions, i.e. the following needs improvement: definition of public information concept, regulation of the right to free public information for low-income categories, provisions on official information, a number of issues related to restricted information, concerning persons’ access to information about themselves, procedure for provision of information by legal entities of public law, terms for provision of information etc.

2. The lack of an independent supervisory body over observance of the right to access to public information; 3. Imperfection of the procedure for prosecution of violations of the right to access to information (inability to prosecute some categories of persons, excessively short period for prosecution, limited resources of the Secretariat of the Commissioner for human rights and the inability to engage the public monitors, the requirement of personal delivery of records); 4. Deficiencies of administrative practice: absence of practice to establish balance between the right to privacy and the right to public disclosure, issues with providing information about available land plots, the requirement to specify the requester’s name in the request for information, the issue with reimbursement for making copies of documents, extracting information from multiple documents in response to a request, using a three-tier test, failure to provide information in a scanned form to the requestor’s e-mail, and socially relevant information etc.

The right of access to public information

9

5. The imperfection of the judicial practice is demonstrated particularly in the following: the return of the case (administrative offense record) for revision, the requirement to indicate the personal data of the person for which the record is prepared, in the administrative offense record, deficiencies of the procedure for handling cases, unpredictability of processing such cases and the lack of recommendation clarifications of the High specialized court on the application of the law on access to public information in the judicial practice.

COMMISSIONER’S RECOMMENDATIONS For the Verkhovna Rada of Ukraine •

To adopt legislation on establishing of an independent supervisory body in the field of access to public information;

•

To ensure as soon as possible the adoption of draft laws to improve legislation on access to public information and to strengthen state supervision over observance of the right to access to public information.

For the Supreme Administrative Court of Ukraine •

To adopt a Plenary Resolution on the application of legislation on access to public information;

•

To include the application of laws on access to public information on the list of subjects for systematic training of judges.

For the Cabinet of Ministers of Ukraine •

To ensure urgent measures to adopt the procedure for registration, storage and usage of documents and other media that contain proprietary information collected in the course of investigative, counterintelligence activities, in national defence;

•

To ensure measures to amend Resolution № 740 of the Cabinet of Ministers of Ukraine dated 13.07.2011 «On approval of ceiling for costs of copying or printing documents to be provided under request for information» in terms of envisaging ceiling for costs of scanning of documents to be provided by e-mail in response to a request for information.

For the Ministries of Ukraine •

To revise the Lists of proprietary information in order to align them with Law

•

№ 2939.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

•

To revise the label «For official use only» and to ensure proper recording of proprietary information.

•

To revise the official websites and align them with Article 15 of the Law.

•

To hold workshops (trainings), on a regular basis, to raise awareness of employees about the proper application of legislation on access to public information.

For local self-governments •

To revise the official websites and align them with Article 15 of the Law.

•

To take steps to develop a list of specific information about the land that can be provided for free (for usage) to citizens (if such information has not been developed).

•

To revise the label «For official use only» and to ensure proper recording of proprietary information.

•

To ensure the availability of adequate regulation in the Council Regulation for: – review of requests for information received by the Council; – ensuring that everyone can exercise their right to attend the open sessions of the Council; – disclosing the Council’s draft resolutions, adopted decisions, and minutes of the Council’s sessions; – disclosing of findings and recommendations of the standing committee, minutes of meetings; – disclosing of acts of local self-governments and officials under the Law of Ukraine «On Access to Public Information»; draft acts of local governments..

•

To hold workshops (trainings) on a regular basis, to raise awareness of employees about the proper application of legislation on access to public information.

The right to personal data protection

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THE RIGHT TO PERSONAL DATA PROTECTION Based on the findings of the expert mission of the European Commission in 2015, it was noted in the Sixth Progress Report on the Implementation by Ukraine of the Action Plan on Visa Liberalisation that Ukraine had satisfactorily fulfilled the Law «On Personal Data Protection» and ensured efficient functioning of the independent oversight of the personal data protection.

In 2015, the Ukrainian Parliament Commissioner for Human Rights (hereinafter – the Commissioner) received 638 petitions from citizens and legal entities concerning the enforcement of the right to personal data protection. Half of those petitions contained a request for clarification on the practical application of the Law of Ukraine «On Personal Data Protection», on the rights of personal data subjects etc. The other half included complaints about violations of the law on personal data protection by the holders of personal data.

Where violations of legislation on personal data protection (141 petitions), were confirmed upon review, the holders of personal data were issued with a request to eliminate violations and about inadmissibility of similar infractions in the future.

According to complaints, the following rights for personal data protection were violated in 2015 (rated for frequency): 1. Access to own personal data.

2. Transfer of personal data to third parties.

3. Grounds for processing of personal data.

4. Inconsistency of the amount of personal data processed with the processing purpose.

The complaints largely referred to the processing of personal data in the financial sector, in housing and communal services, and on the Internet.

To implement the functions of supervision over observance of personal data protection legislation assigned to the Commissioner, during 2015 the employees of the Department for personal data protection of the Secretariat conducted inspections of public authorities, local self-governments and enterprises, institutions and organizations of all forms of ownership.

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THUS, THE FOLLOWING WAS INSPECTED DURING THE YEAR:

17 holders of personal data that pro-

cess it in the social sector (including individual departments and administrations of the Ministry of Social Policy of Ukraine, departments of regional state administrations and city councils, Administration of Labour and Social Welfare of district administrations);

11 holders of personal data that provide telecommunications and other consumer services (including major providers

of information and telecommunication services; an air carrier company for passengers, baggage and cargo; one of the largest wholesalers/retailers, etc.);

10 structural units,

subordinated to institutions and agencies of the Ministry of Internal Affairs of Ukraine and the State Migration Service of Ukraine (regional administrations of the Interior Ministry of Ukraine in Kyiv and territorial bodies of the State Migration Service of Ukraine);

6 holders of personal data that process it for

provision of medical care and health services (public health care institutions, primary health care centres, regional hospitals);

3 holders of personal data that process personal data of conscripts, draftees and mobilized persons.

Also, 2 secondary schools and 2 apartment owners’ associations and 1 housing operation office were inspected.

In 2015, with the assistance of the Ukrainian Helsinki Human Rights Union, monitoring visits of the Department for personal data protection of the Secretariat of the Ukrainian Parliament Commissioner for Human Rights in the field of «compliance with legislation on personal data protection of internally displaced persons in the city of Kharkiv» were made.

Together with the Department for the implementation of the national preventive mechanism 10 monitoring visits were made to places where persons are detained according to court judgments or decisions of an administrative authority under the law, including: children’s homes, orphanages, psycho-neurological boarding schools, geriatric homes, homes for the elderly and disabled, courts, border troops etc.

Thus, during the year 62 scheduled and unscheduled inspections of personal data holders were conducted, whose findings highlighted a number of issues related to the organization of the personal data processing, including: 1. Lack or inconsistency of internal holder’s regulations/documents that govern personal data processing with the requirements of current legislation on personal data protection.

The right to personal data protection

13

2. Employees who have access to personal data are not/are partially recorded.

3. Failure to let employees who have access to personal data sign the confidentiality agreement about the personal data that they were entrusted or that have learned in connection with professional or official duties or employment, as envisaged in Part 3, Article 10, Law of Ukraine «On personal data protection».

4. Almost all of the holders receive consent about the processing of personal data from the employees to exercise employment rights and obligations.

5. The composition and contents of personal data processed in many cases are excessive against the particular purpose of processing.

6. The principle of processing/storage duration is violated, i.e. the processing of personal data takes longer than is necessary for the legitimate purposes for which it was collected or processed further, which is inconsistent with the requirements of Part 8, Article 6, Law of Ukraine «On personal data protection».

Based on petitions of the central executive bodies, citizens and on its own initiative, the Department for personal data protection of the Secretariat of the Ukrainian Parliament Commissioner for Human Rights continuously analyses laws, regulations and their drafts that relate to personal data processing. In particular, last year about 34 legislation drafts were reviewed:

15 draft laws

5 draft regulations of the Cabinet of Ministers of Ukraine

14 draft legal acts of state bodies

Almost all draft regulations needed revision in order to align them with Article 32 of the Constitution of Ukraine and the Law of Ukraine «On Personal Data Protection». The comments were taken into account by the authors in most cases. However, the review of the draft legislation revealed dangerous tendencies in terms of insistence of some government bodies to control various aspects of personal life.

The educational activities in the field of personal data protection are one of the Commissioner’s priorities in terms of personal data protection. The employees of the Department for personal data protection regularly hold educational lectures for the professional and target groups in terms of practical application of legislation on personal data protection.

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Thus, with the support of the Office of the Council of Europe in Ukraine within the framework of the joint program of the European Union and the Council of Europe «Strengthening information society in Ukraine», the Secretariat of the Ukrainian Parliament Commissioner for Human Rights has conducted a number of workshops on issues concerning the law on personal data protection for the law enforcement officers, health sector and lawyers (Chernivtsi, Lviv, Lutsk, Vinnytsya, Mykolaiv). These workshops were attended by about 800 people.

The Secretariat of the Ukrainian Parliament Commissioner for Human Rights, with the support of the Office of the Council of Europe in Ukraine and the Ukrainian Catholic University, also implements the project «School of personal data protection», which is a three-day course for the target groups. The representatives of telecommunication and banking companies, as well as the military have already attended the course.

Freedom from discrimination

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FREEDOM FROM DISCRIMINATION In 2015, the Commissioner received 359 reports of discrimination, violation of the rights of national minorities and representatives of religious communities.

The grounds for the Commissioner’s response included both the petitions of citizens and own initiative.

According to the information obtained by monitoring the media initiated, which is 2.5 times more than in the previous year.

53 proceedings were

The institutional mechanism was strengthened – the financial and human resource capacities of the Commissioner’s Secretariat in terms of equality and non-discrimination issues were increased.

The relevant sections of the National Strategy for Human Rights and Action Plan for its implementation actually integrate all the recommendations related to prevention and combating discrimination, which the Commissioner had been providing to the state authorities for several years.

Participation in the development of the draft law on harmonization of legislation in the area of combating discrimination with the European Union law (Registration № 3501).

6 draft laws were reviewed by experts.

The Strategy for prevention and combating discrimination in Ukraine was actively implemented in 2014-2017 including:

19 seminars were held for judges,

practicing lawyers, attorneys, civil servants and community activists;

5 trainings for employees

дf the Secretariat and regional offices were held;

5 trainings were held for judges of High Specialized Court of Ukraine, minority and migrant communities, lawyers and civil society activists on hate crimes;

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3 publications

were prepared («Organisation of training on nondiscrimination issues», «Gaps in prevention, documenting, investigating and prosecution of perpetrators of hate crimes», «Status and implementation of public policies on Romani») in cooperation with non-governmental human rights organizations and with support of IOM, IF «Renaissance» and Council of Europe.

4 workshops

were held on issues of ensuring observance of minority rights for executive bodies, national minorities, NGOs, and human rights advocates in the framework of the joint project with the European Centre for Minorities «ECMI of Eastern Partnership Program» entitled «National minorities and ethnopolitical issues: Belarus, Moldova, Ukraine».

PRIORITY AREAS OF MONITORING DISCRIMINATION BASED ON:

«Race», skin colour and ethnic (national) origin

Religion and state of the right to religious freedom in Ukraine

Sexual orientation and gender identity

Disability, health and HIV/AIDS status

Place of residence

ISSUES: • The issue of legislative regulation of liability for spreading hate speech remains unresolved; • No proper legislative regulation of the rights of citizens for whom the performance of military duty is contrary to their religious beliefs, to alternative (non-military) service in the period of mobilization; • Lack of reasonable accommodation for people with disabilities in terms of access to courts and employment in the public service; • Ineffectiveness of legal mechanisms to combat discrimination against LGBT; • Inadequate mechanisms of payments of child care benefit for persons temporarily staying outside of Ukraine.

Freedom from discrimination

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PETITIONS WERE SENT TO: Minister of Social Policy about the need to draft amendments to the Law of Ukraine «On alternative (non-military) service»; initiatives about revising the Procedure for defining functionality of the disabled, disabled children, other persons, approved by the Ministry’s Resolution № 37 dated January 20, 2015; the need to solve the issue with payment of child care benefits to persons who are temporarily abroad.

Minister of Health about the need to review the List of contagious diseases which are grounds for refusal of immigration to Ukraine, in order to remove provisions that lead to discrimination by the HIV status.

National Agency for Civil Service to amend the relevant laws and regulations governing the civil service to take account of the needs of the disabled.

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THE RIGHT TO A FAIR TRIAL Number of petitions to the Commissioner for Human Rights on violation of the citizen’s rights to a fair trial

5836

2012

560 1140

5184

4717

2013

2014

4720

2015

Over 1,700 submitted petitions dealt with violation of the right to a fair trial in civil and administrative courts, of which about 560 complaints were about excessively long case reviews.

4276

3690

3450

As in previous years, the petitions received by the Commissioner, contained complaints about long case reviews, to a greater5836 extent, in the appeal courts, the disagreement with 5184 court decisions, illegal inaction of bailiffs in the execution judicial decisions, abuse 4720of law 4717 of2014 2013 2015 on state compensation for harm caused by a crime, etc. were reported.

Most complaints were received by the Commissioner 351 complaints about non-record of information about criminal offenses from the city of Kyiv, Kyiv, Kharkiv,in the Dnipropetrovsk, Unified Register of Pre-Trial Investigation (URPTI) Lviv, Luhansk and Donetsk regions. 2012 2013 2014 2015 388 complaints about unjustified criminal proceedings 129 complaints about arbitrary closure of criminal proceedings Number of petitions to the Commissioner 261 complaints about prolonged pre-trial investigation on violation 4276 330 complaints 3690about violation of the right to defence of the citizen’s rights 3450 and freedoms 286 complaints about illegal detention in criminal About 2 petitions referred to decisions, actions or inactions of the investigators, prosecutors etc proceedings 0

500

2013

1000

2014

1500

2015 2000

Most of the complaints were sent to the Commissioner from Dnipropetrovsk, 351 complaintsKharkiv, about non-record of information about criminal offenses theKyiv, Unified Donetsk Register of Pre-Trial Investigation (URPTI) Odesa, Lviv, Kyiv region, the cityinof and Lugansk regions.

388 complaints about unjustified criminal proceedings 129 complaints about arbitrary closure of criminal proceedings 261 complaints about prolonged pre-trial investigation 330 complaints about violation of the right to defence

2013

The right to a fair trial

2014

2015

19

351 complaints about non-record of information about criminal offenses in the Unified Register of Pre-Trial Investigation (URPTI) 388 complaints about unjustified criminal proceedings 129 complaints about arbitrary closure of criminal proceedings 261 complaints about prolonged pre-trial investigation 330 complaints about violation of the right to defence 286 complaints about illegal detention About 2 petitions referred to decisions, actions or inactions of the investigators, prosecutors etc 0

500

1000

1500

2000

In cases where applicants reported blatant disregard of petitioners’ rights by enforcement agencies or prosecutors, letters were sent to prosecutors at various levels about the need for inspections and appropriate measures. According to the statistics, in 510 cases the authorities confirmed violation of the petitioners’ rights and took measures about their rehabilitation.

In 2014-2015, the Commissioner paid particular attention to those persons who were held and continue to be held in detention facilities and prisons of Donetsk and Lugansk regions located in the ATO zone and in the areas not controlled by the Government of Ukraine.

In accordance with Article 206 of the CPC of Ukraine 2012, at the end of March 2015, petitions were sent to the investigative judges of Artemivsk City Court, Illichivsk District Court, Mariupol, Donetsk region and Starobelsk district court of Luhansk region with applications to verify the legality of detention of 99 persons, held in Artemivsk, Mariupol and Starobelsk detention facilities for which the review of criminal proceedings (cases) was made by courts located in the uncontrolled territory of Ukraine and materials of the criminal cases were located in the uncontrolled area.

43 persons were actually released from custody as the follow-up of the above Commissioner’s requests to the judges.

In 2015, the Commissioner initiated the transfer of three people from the uncontrolled areas of Ukraine in Donetsk region.

Thus, in July 2015, the first 9 prisoners were transferred, and as early as on August 5, 2015, in the second transfer, 20 prisoners were transferred from the Donetsk detention facility, some of which were «transits», i.e., the individuals who went through a transit prison to other institutions, or came to participate in judicial examination and remained

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

in jail because of the intensification of hostilities. On December 8, 2015, the Commissioner caused another successful transfer of 20 prisoners who were serving sentences in Yenakiyevo Penal Colony â„– 52.

Also, one of the important achievements in terms of rehabilitation of the rights of persons to the reasonable time of criminal investigation, that were mentioned above, was the transfer of 173 criminal proceedings (cases) from the uncontrolled territories in Donetsk region to the courts located in the areas controlled by the Government of Ukraine on December 29, 2015.

IN TOTAL, THE FOLLOWING WAS DONE DURING THE YEAR:

154 visits to courts were made in order to monitor observance of the rights in criminal cases (proceedings) 36 visits – to monitor observance of the rights in civil and administrative cases

3327 legislation clarifications were provided to petitioners

Special proceedings of the ukrainian parliament commissioner for human rights

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SPECIAL PROCEEDINGS OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS THE MAIN OBJECTIVE OF THE SPECIAL PROCEEDINGS DEPARTMENT is the proceedings for cases of the most high-profile human rights violations which did not have a proper formal investigation and that show signs of systemic abuse.

In 2015, the employees of the Department covered 410 proceedings in cases of violation of human rights, of which 392 proceedings were initiated at the Commissioner’s request, and 18 proceedings for the high profile cases and violations of a systemic nature were initiated at the Commissioner’s own discretion.

In general, based on the results of the proceedings 112 acts of response were sent by the Commissioner to the relevant authorities to take measures to eliminate the violations.

23 trips were made to the regions of Ukraine, during which 69 law enforcement and detention facilities, subordinate to law enforcement authorities were visited in order to verify the state of human rights and freedoms and other measures under the open proceedings.

Also, 37 complaints regarding the disappearance, kidnapping and capture of the citizens of Ukraine in the ATO area were processed.

10 9 11

20 15

in 20 cases, the petitioners complained about the illegal detention and abduction of persons; In 15 cases, petitioners complained of the use of torture against detainees;

11 petitions were related to violations of the right to legal counsel; 9 petitions were related to holding people in inhumane conditions in places not designed for detention; 10 petitions contained information on missing persons.

According to the results of processing of these applications 94 acts of the Commissioner’s response were prepared and issued in order to restore the rights. to prosecution agencies of Ukraine – 36; to Ministry of Internal Affairs of Ukraine – 28; to Security Service of Ukraine – 24;

3 21

to the court – 3; to State Penitentiary Service of Ukraine – 2; to Ministry of Defence of Ukraine – 1.

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36 28

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The most common violations that were subject to special proceedings: •

Torture and ill-treatment to obtain confessions of crimes;

•

Use of withdrawal symptoms and drug intoxication to get evidence from drug addicts;

•

Improper investigation of the facts of torture and ill-treatment;

•

Unfounded coercive detention of individuals in places of law enforcement and other places not designed for holding detainees;

•

Unlawful detention on suspicion of committing a crime without the ruling of an investigative judge of the court;

•

Manipulation with actual time of detention;

•

Unlawful detention over the terms, upon the expiry of which the detainees should be immediately released;

•

Provoking crimes and violations of procedural rules in the course of criminal proceedings;

•

Prosecution on the basis of evidence obtained through unlawful investigative (detective) actions;

•

Violation of procedural rights and guarantees of detainees, including the right to attorney;

•

Non-performance by the investigating judge of general obligations to defend human rights stipulated by the Criminal Code of Ukraine.

•

Violation of the right to health care, including discontinuity of substitution drugs and antiretroviral treatment as prescribed by the doctor.

KEY RECOMMENDATIONS BASED ON SPECIAL PROCEEDINGS FOR: High Specialized Court for civil and criminal cases – to ensure strict implementation of the investigative judges’ obligations to defend human rights under Article 206 Criminal Code of Ukraine; General Prosecutor of Ukraine – for every fact of the use of force by law enforcement officers, to ensure effective investigation considering the practice of the European Court of Human Rights, which would clarify all the circumstances of the case and, in the case of human rights violations, bring those responsible to justice; Heads of the pre-trial investigation departments – to establish the proper performance of duties of those responsible for the stay of detainees under Article 212 of the Criminal Code of Ukraine regarding the rights of detainees.

Implementation of the national preventive mechanism

23

IMPLEMENTATION OF THE NATIONAL PREVENTIVE MECHANISM VISITING DETENTION FACILITIES BY NPM DEPARTMENT IN 2012-2015

235

NPM visits by Ukrainian regions (2012-2015)

170

2015

8,1%

2012

12,0% 24,8%

Total visits in 2012-2015

21,3%

821

19,0%

14,8%

153

263

2014

2013

Distribution of visits by detention facilities (%)

SMS

2012

2013

2014

2015

SPS SRS SCA MIA MSP MOH МОН MOD Security Service 0 10 20 30 40 50 0

10 20 30 40 0 5 10 15 20 25 30 35 0 5 10 15 20 25 30

In 2015, 1,111 petitions concerning violations of the rights of persons in detention facilities as well as 260 petitions concerning persons held in penitentiary institutions in the areas uncontrolled by the government of Ukraine were received.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

Thanks to the principled position of the Commissioner on the need to ensure appropriate conditions in detention facilities subordinated to the National Police, the following facilities were eliminated in 2015: 70 temporary detention centres and 13 special administrative detention centres, 5 juvenile reception centres. About 68,000 violations of the rights of persons held in the National Police institutions and escorted by police officers were found.

MONITORING IN THE ATO ZONE Total of 52 visits were made, including: to the institutions of education, health and social security – 47, to other detention facilities – 5.

In 2015, 49 people were transferred from penal institutions located in the area uncontrolled by the government of Ukraine (Donetsk region).

During the visits, the following most important aspects were focused on: 1. Ensuring the right to life and safe living.

2. Capability to be transported out to safe areas and availability of shelters against possible bombing.

3. Provision of food and medicines.

4. Availability of a sufficient number of personnel.

ACTIVITIES OF THE DEPARTMENT FOR IMPLEMENTATION OF THE NATIONAL PREVENTIVE MECHANISM (NPM) – OMBUDSMAN+ IN 2012-2015 5. An interactive map of Ukrainian detention facilities created.

6. Informational/analytical NPM database developed and commissioned.

7. 275 community monitors trained jointly with NGOs. 8. Cluster monitoring visits (simultaneous visits to various detention facilities) organized to Cherkasy and Zaporizhzhya.

9. The system of specialized trainings for the NPM professionals introduced – monitors and representatives of social services with visits to detention facilities (psychiatry – Odessa, education – Sumy, Penitentiary Service – Kovel, Army – Zhytomyr).

10. Independent monitoring visits by regional public relations coordinators of the Commissioner together with members of the public launched.

11. Review of the progress of the executive authorities in terms of meeting the recommendations on the results of monitoring visits.

Implementation of the national preventive mechanism

25

12. Acts of response on the results of monitoring visits (10 Commissioner's acts in 2015) prepared.

13. Special reports on the NPM progress prepared.

NPM Functions 1. Monitoring visits to detention facilities.

2. Review of petitions from persons held in detention facilities.

3. Visits following petitions of persons held in detention facilities.

4. Interaction with government and the public.

5. Analytical work.

6. Educational activities.

NPM cooperation with the government and public 1. Ministries and departments.

2. Regional and city state administrations.

3. NGOs. 4. Media.

Detected human rights violations in detention facilities

PROCEEDINGS REVIEW (2012-2015)

Space for 1 person Psychological and physical violence Violation of rights for privacy Violation of rights for health care, medical aid Access to legal information

0

Access to drinking water

1000

2000

3000

RECOMMENDATION PROGRESS STATUS

Respect for the right to liberty and security of person Usage of illegal methods and ways of punishment The right to free development of personality

16% 10% 46%

Possibility of personal higiene 05

0

100 150 200

Completed in full

28%

In progress Partially completed Not completed

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

PROTECTION OF THE RIGHTS OF UKRAINIAN CITIZENS ABROAD. CASES OF O. SENTSOV,

O. KOLCHENKO, N. SAVCHENKO AND OTHERS PROCEEDINGS FOR INDIVIDUAL CASES: 1. The case of Nadia Savchenko ISSUES: • torture and lack of efficient investigation of the fact; • inadequate medical care in prison; • special health condition during fasting; • denial of family visits;

• denial of the sister's entry to the territory of the Russian Federation.

2. The cases of the Ukrainian citizens Oleg Sentsov, Olexandr Kolchenko, Gennady Afanasiev and Olexiy Chyrniy.

ISSUES: • torture and lack of efficient investigation of the fact; • the Ukrainian consul was not given access to provide consular and legal assistance; • automatic citizenship of Russian Federation; • the discriminatory verdict (20 years in prison, whereas the Russian citizens that commit similar crimes normally serve 11 – 12 years); • inadequate medical care in prison.

3. The case of Yuriy Soloshenko.

ISSUES: • torture and lack of efficient investigation of the fact; • closed court proceedings; • inadequate medical care in prison.

Protection of the rights of ukrainian citizens abroad

27

4. The case of Mykola Karpyuk and Stanislaw Klykh.

ISSUES: • torture and lack of effective investigation of the fact; • the Ukrainian Consul was not given access to provide consular and legal assistance; • pressure on lawyers; • inadequate medical care in prison.

THE FOLLOWING MEASURES WERE TAKEN IN THESE PROCEEDINGS: The written and telephone petitions were made to both the Commissioner for Human Rights in the RF and the Commissioners for Human Rights in the respective areas and regions of the Russian Federation with the following requests: to assist in organizing a visit of the Ukrainian consul with the above Ukrainian citizens in order to defend their rights; to check detention conditions of those prisoners; to ensure their right to retain citizenship of Ukraine; to determine location, to provide access to a lawyer; to assist with an independent doctor's visit; to ensure meeting with family, etc; A letter to the Chairman of the Supreme Court of the Russian Federation, which emphasized that all charges in the case of O. Sentsov were based on testimony obtained by torture; A letter was issued to the head of the Donetsk City Court of the Rostov region of the Russian Federation with a request to review the petition to change jurisdiction and to transfer the proceedings concerning N. Savchenko to the appropriate Court in Moscow; A letter was issued to the President of the Supreme Court of the Chechen Republic of the Russian Federation Magomed Karatayev and Russian Prosecutor General Yuriy Chayka, with the demand to ensure efficient investigation of torture on the Ukrainian citizens Mr. Karpyuk and Mr. Klykh.

In order to monitor compliance with the procedural rights of Ukrainian citizens in the Russian Federation, upon consultations with the public, the Commissioner for Human Rights appointed Volodymir Shreidler, the famous Russian journalist and human rights activist, as her representative. The latter was instructed to monitor the court proceedings, including in those cases.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

INTERNATIONAL ACTIVITIES IN 2015 1. Over 65 requests to national human rights institutions (Ombudsmen) of other countries were submitted in order to protect the rights of the Ukrainian citizens (a significant number of them to E. Pamfilova, the Commissioner for Human Rights in the RF, and to the regional ombudsmen of the Russian Federation in the interests of Ukrainian prisoners).

2. The alternative (shadow) reports were provided to the UN treaty bodies: •

The interim report to the UN Human Rights Council on the progress of recommendations provided to Ukraine in the 2nd cycle of the Universal Periodic Review;

•

The shadow report to the UN Committee on the Rights of Persons with Disabilities (under consideration of the initial report of Ukraine on the Convention on the Rights of Persons with Disabilities)

3. 3 agreements on cooperation signed: •

Memorandum of Understanding between the Commissioner for Human Rights and the Office for Democratic Institutions and Human Rights of OSCE (June 3, 2015)

•

Agreement on cooperation between the Commissioner for Human Rights and the Ombudsman Institution of Turkey (September 17, 2015)

•

Memorandum of Understanding between the Commissioner for Human Rights and the Max Planck Society in support of international peace and the rule of law (April 17, 2015).

4. The Department organized and provided organizational support for international events.

over 15

The most significant of them was the International Conference "Role of national human rights institutions in conflict and post-conflict situations" held on October 21-22, 2015 in Kyiv with the participation of many human rights institutions of countries that had experienced or were experiencing conflicts (Eastern Europe, the Balkans, the Caucasus, Latin America, Asia) and international organizations (the event was organized jointly with UNDP).

Based on the conference results, the Kyiv Declaration on the role of national human rights institutions in conflict and post-conflict situations was adopted. Currently, the implementation of the Declaration is in progress.

Observance of the rights of internally displaced persons

29

OBSERVANCE OF THE RIGHTS OF INTERNALLY DISPLACED PERSONS The Commissioner for human rights has been monitoring the observance of the constitutional rights of a large part of Ukrainian citizens who fled the temporary occupation and armed conflict, left their homes and relocated to different parts of Ukraine, for the second year in a row.

The new step towards social adaptation and reintegration of Internally Displaced Persons (IDP) should be the willingness of the state to find long term solutions through the development and adoption of appropriate state Strategy – a clear roadmap in response to massive forced population displacements within the country.

The strategy is a requirement which will ensure a comprehensive fulfilment of the tasks our government faces. Without a strategy like that in place, there is a threat to focus on urgent daily issues and to ignore a chance to stabilize the lives of citizens who have experienced the negative effects of the armed conflict and the temporary occupation.

The review of petitions submitted to the Commissioner for human rights by Internally Displaced Persons in 2015 shows that their nature somewhat changed in comparison with 2014.

In 2014, the issues raised in the complaints were diverse and mostly related to the need to address the pressing social needs (transferring and receiving social benefits, provision of temporary housing etc.), whereas in 2015, the issues were mainly related to solving systemic problems, establishing mechanisms to address them and those focused on the long term.

According to the Ministry of Social Policy, as of January 1, 2015.

824 730 Internally Displaced Persons were accounted for (562,216 families, including 239,583 families were assigned financial aid to cover living expenses, including compensation for housing and utility bills).

About 1.7 million IDPs were accounted for (1,325,362 families).

42,5%

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

Dynamics of increasing number of IDPs in 2015 by regions

Vinnytsya Volyn Dnipropetrovsk Donetsk Zhytomyr Zakarpattia Zaporizhzhia Ivano-Frankivsk Kyiv Kirovograd Lugansk

2015

Lviv

2014

Mykolaiv Odessa Poltava Rivne Sumy Ternopil Kharkiv Kherson Khmelnitsky Cherkassy Chernihiv Chernivtsi Kyiv city 0

100000

200000

300000

700000

Observance of the rights of internally displaced persons

Due to the activation and restoration of fighting in certain areas of the conflict line in the Donetsk and Lugansk regions in early 2015, the number of internally displaced persons (hereinafter – IDPs) increased by 50% and, as of January 1, 2016 was 1 678 587 – persons, i.e. 1,325,362 families, of which 638,339 families were assigned financial aid, 366,555 – for the first time, 272,784 – extended to further period.

366 555

31

272 784

1.1. Status of legislation governing the rights of the Internally Displaced Persons The Law of Ukraine "On Rights and Freedoms of Internally Displaced Persons" (hereinafter – the Law) came into force on November 22, 2014 and as early as on February 18, 2015, the Verkhovna Rada of Ukraine registered a draft Law of Ukraine "On amending certain laws of Ukraine to strengthen guarantees for observing rights and freedoms of Internally Displaced Persons", which aimed to improve the procedure for accounting of Internally Displaced Persons, in the first place.

However, the process of adoption of the draft law was unnecessarily long and was completed only in early 2016.

In the Commissioner's review of the legal framework for the rights of IDPs, a strong emphasis is put on compliance of the by-laws with current legislation, measures are taken to align the national legislation in the field of IDPs' rights with international standards and introduction of appropriate law enforcement practice by government agencies whose powers include ensuring the rights of IDPs. It should be noted that within the implementation of the provisions of the Law of Ukraine "On ensuring rights and freedoms of Internally Displaced Persons" in 2015, the alignment of the resolutions of the Cabinet of Ministers of Ukraine with the law was still not completed.

The revisions of IDPs registration procedure are deemed to restrict IDPs in their rights, including the right to freedom of movement and choice of residence in Ukraine, the right to social protection in accordance with Resolution №79 of the Cabinet of Ministers of Ukraine "Certain issues of registration and issuance of a registration certificate for a person who moves from the temporarily occupied territory of Ukraine or the antiterrorist operation area" of 04 March 2015 (hereinafter – Resolution №79).

They also lead to direct discrimination of this category of persons on the basis of residence, violating the principle of equality under Article 24 of the Constitution of Ukraine.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

In particular, Resolution № 79 envisages checking the veracity of information about the place of residence by government officials visiting the address of the actual residence that the Internally Displaced Persons specified in their application for registration.

In this connection, it needs to be noted that the national legislation does not envisage any verification of information on a permanent or temporary residence of citizens through sending public employees to the specified address.

The law envisages verification as described above for recipients of certain social benefits, for example the targeted use of social benefits.

Resolution № 79 introduced a system of checks in the Procedure for registration and issuance of registration certificate for all IDPs to support assignment of status of Internally Displaced Persons who may not be any recipients of social benefits in the future. Resolution № 79 was appealed by the Commissioner.

Due to numerous cases of suspension of pension and other social benefits to Internally Displaced Persons on the basis of information from the law enforcement agencies that the IDPs do not actually live at the address specified for registration, the Commissioner initiated a dialogue between the public, Internally Displaced Persons' representative and the government.

As a result of a constructive dialogue with the deputies of Ukraine, the Minister of Social Policy, the Head of the State Migration Service, the senior management of the National Police and the Security Service of Ukraine, on February 29, 2016, the Office of the Commissioner for Human Rights established a working group involving experts, organizations and initiatives that deal with the rights of internally displaced individuals to draft Resolution № 509 of the Cabinet of Ministers of Ukraine "On accounting for internally displaced persons" dated October 1, 2014, to establish transparent and clear rules for verification of reasons for IDPs registration.

The community also perceived as discriminatory the changes that had been made to the government acts on the appointment of a single authorized bank (JSC Oschadbank) to pay pensions to IDPs – pensioners.

All other pensioners have a legal choice of banking institutions (49 banks have been authorized to serve pension and benefit accounts), whereas the Internally Displaced Persons were deprived of such opportunities (their accounts are serviced only at JSC Oschadbank).

One cannot but note the lack of a mechanism for IDPs to exercise their right to participate in local elections, which is stipulated in Article 8 of the Law of Ukraine "On ensuring rights and freedoms of Internally Displaced Persons."

Observance of the rights of internally displaced persons

33

After the Law of Ukraine "On local elections" became effective and after the Central Election Commission provided information on absence of a mechanism for the IDPS who were registered in the areas temporarily uncontrolled by the Ukrainian government to exercise their right to participate in local elections, the Commissioner made an open address to the deputies of Ukraine where she emphasized that because of imperfections in the legislation before the local elections in 2015, there was a situation in the country where nearly half a million Ukrainian citizens – Internally Displaced Persons – were actually deprived of the opportunity to exercise their voting rights, including the right to elect deputies of village, settlement, town city councils and appropriate heads of the municipalities where they resided.

The Commissioner considers that a situation like that is a serious discrimination based on place of residence and status of an Internally Displaced Person and is contrary to the standards of international law, the Constitution, laws of Ukraine, and Ukraine's commitments to ensure sustainable integration of Internally Displaced Persons at the place of current residence.

The Commissioner called on the people's deputies to immediately resolve the situation that had resulted from the amendments to the Law of Ukraine "On local elections."

Throughout the year, the Commissioner paid special attention to controlling of crossing the conflict line in Donetsk and Lugansk regions and entering/exiting the temporarily occupied territory of Ukraine.

The review of the first revision of the Provisory procedure to control movement of persons, vehicles and goods across the conflict line in Donetsk and Lugansk regions, approved by Decree №27 dated January 22, 2015 of the first deputy head of the Antiterrorist Centre under the Security Service of Ukraine (hereinafter – the Provisory Procedure) showed that it was unbalanced, imperfect, and in urgent need of revision of the procedure to control the crossing of the conflict line.

Subsequently, the direct practice of the Provisory Procedure showed the lack of resources, in addition to its imperfections.

That was the reason for several petitions that the Commissioner filed with the Security Service of Ukraine, which stressed the need to improve the regulatory framework and to provide resources to support the entry/exit of the conflict line in Donetsk and Lugansk regions to ensure the proper observance of human rights and to hold joint meetings.

In particular, further to a Commissioner's letter, in May 2015, the Security Service of Ukraine held a round table entitled "Ways of improving the capacity of the checkpoint system in the Donetsk and Lugansk regions". It resulted in a dialogue between the security Service, the Ministry of Defence, the border and fiscal authorities and the public

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

about the need to control the conflict line crossing and its form; also, it was decided to establish a working group to improve the existing crossing procedure.

It included representatives of government bodies and the public, the Commissioner's representative for the rights of Internally Displaced Persons.

The revised Provisory Procedure which was drafted by the working group settled some important issues, but as real life in the conflict zone constantly raises new challenges, the Provisory Procedure requires constant update. In fact, the improvements are needed for both the regulatory framework and resources for conflict line control to prevent violations of human rights and to ensure safety of people.

The CMU Resolution №367 dated June 04, 2015 approved the Procedure for entering/ exiting the temporarily occupied territory of Ukraine.

Also, the discontent of the IDPs from the Crimea and the peninsula residents was related to the adoption of the Government's decision to limit the supply of specific goods (works, services) to/from the temporarily occupied territory of Ukraine (CMU Resolution №1035 dated December 16, 2015).

According to the resolution, for the period of temporary occupation, the supply of goods (works, services) was prohibited under all customs regimes to/from the temporarily occupied territory of Ukraine, except: personal effects transported in carry-on baggage and/or accompanied baggage and socially important foods carried by persons, whose total cost does not exceed the equivalent of UAH 10,000 and whose total weight does not exceed 50 kilograms per person, in accordance with the list in the annex.

However, it needs to be noted that the list of socially important foods annexed to the resolution, is rather limited without any justification.

To prevent the unjustified restriction of civil rights and reducing of social tension, such restrictions should be discussed with the IDPs representatives, residents of the occupied territories and the public.

Currently, CMU Resolution №1035 dated December 16, 2015 is being appealed in court.

Observance of the rights of internally displaced persons

35

1.2. Issues of law enforcement related to the regulation of the legal status of IDPs The proceedings initiated by the Commissioner based on petitions of the IDPs and the findings of several monitoring visits to different regions of Ukraine conducted by the Commissioner's Secretariat jointly with NGOs showed the same lack of consistent practice of law enforcement in the area of IDP rights, like in 2014.

However, in response to numerous petitions from the regions related to the application of the amended Law of Ukraine "On ensuring rights and freedoms of Internally Displaced Persons", the Deputy Minister of Social Policy of Ukraine issued letter â„– 756/0/14-10/081 dated January 20 where he noted that "pending any revisions to the CMU Resolutions â„–505 dated October 01, 2014 "On providing a monthly targeted aid to internally displaced persons to cover living expenses, including housing and communal services" and â„– 509 "On accounting for internally displaced persons", the accounting mechanism for the internally displaced persons and assigning them a monthly targeted aid remains unchanged".

In this regard, the Commissioner issued a petition to the Minister of Social Policy of Ukraine, which emphasized the erroneous nature of the ministry's position, as the bylaws are normally adopted on the basis of laws and their content should not contradict them. Also, she drew attention to the fact that if the by-law is inconsistent with the base law, the latter shall apply, as the law prevails, and indicated the need for an immediate withdrawal of the letter from the Ministry of Social Policy 756/0/14-10/081 dated January 20, and issuing information to the structural subdivisions of the social security system about the need for strict observance of the law in cases where the Internally Displaced Persons want to exercise their right to registration and appointment of a monthly targeted aid.

1.3. Exercising of certain rights of Internally Displaced Persons Given the current situation with the development of the Action Plan to implement the National Strategy for Human Rights, the Commissioner submitted a proposal to develop a mechanism to ensure that citizens residing in the territory of the armed conflict can get social and pension benefits without filing for a status of an Internally Displaced Person. The offer was taken into account.

Currently, a number of institutional issues that need urgent solution to create a more efficient mechanism to support the IDPs rights remain unresolved, which was indicated by the Commissioner in the proposals below.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

PROPOSALS Summarizing all the above, the Ukrainian Parliament Commissioner for Human Rights considers necessary: To speed up the review by the Verkhovna Rada of Ukraine of one of the three alternative draft laws on local elections, which includes the most balanced approach to ensure comprehensive rights of the Internally Displaced Persons as participants of the election process at the local level and minimizes risks related to manipulation with votes.

Cabinet of Ministers of Ukraine: •

To establish a working group to draft the Strategy of Government Policy on Internally Displaced Persons jointly with the central executive bodies, public organizations and initiatives, international organizations and scientists;

•

to ensure that the concerned ministries and other central executive bodies, public institutions and experts review the functioning principles of different kinds of public institutions to further define and establish a single authority for IDPs;

•

t o ensure implementation of the final provisions of the Law of Ukraine "On amending certain laws of Ukraine to strengthen the guarantees of rights and freedoms of Internally Displaced Persons", including in terms of aligning legal acts of the Cabinet of Ministers of Ukraine with this Law;

•

to review the legal framework to identify gaps in the IDP rights enforcement mechanisms and align the regulations with current legislation;

•

to take measures to draft and adopt the Procedure for providing material support and social services under the Law of Ukraine "On compulsory state social insurance" to the insured persons who were in employment relations with enterprises, institutions and organizations which were located in the areas uncontrolled by the Ukrainian government.

•

To develop and adopt simplified rules for obtaining a Ukrainian citizen passport for children that reach 16 years of age and reside in the temporarily uncontrolled territory.

Observance of the rights of internally displaced persons

37

Security Service of Ukraine, the State Border Guard Service of Ukraine, the State Fiscal Service of Ukraine: •

To amend the Provisory procedure to control movement of persons, vehicles and goods across the conflict line in Donetsk and Lugansk regions, Procedure for entering/ exiting the occupied territory, in terms of: – Transportation of things (goods) by Ukrainian citizens and foreigners (stateless persons) through the conflict line and/or to the occupied territory or back; – Clarification of the list of goods that are not covered by the Procedure; – Procedure for entering the uncontrolled territory for children who applied for a passport prior to its issuance, and obtaining a permit to cross the conflict line.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

ENSURING CONSTITUTIONAL RIGHTS AND FREEDOMS OF MILITARY STAFF MAIN GOAL – DEFEND THE DEFENDERS Military Disabled

Military and law enforcement veterans

(illnesses and traumas developed in the line of duty)

DEFENDED CATEGORIES

Police, senior officers

Veterans among the subject persons

Family members of the subject persons

Conscripts

(for issues related to duty)

(other than conscripts)

MONITORING LEGISLATION Proposals issued for draft laws

5

MAIN DIRECTIONS OF ACTIVITIES

MONITORING OF OBSERVANCE OF RIGHTS units and 15 military detachments were visited in 2015

REVIEW OF CITIZENS’ PETITIONS Number of petitions

371 270

10 in the ATO areas

Petitioner category, per cent 30,6

30

32,5

25 20 15

2014 2015 21,7

17,8

19,9

21,7

19,6 14,4

13,6 8,2

10 5

2014

2015

0

Military

Pensioner, veteran

Disabled Family member, Others representative

Ensuring constitutional rights and freedoms of military staff

39

THE FOLLOWING RECOMMENDATIONS WERE PROVIDED TO THE STATE AUTHORITIES RELATED TO ELIMINATION OF THE MAIN VIOLATIONS AND DEFICIENCIES BASED ON THE COMPLETED ACTIVITIES: The rights of citizens during the military mobilization: •

illegal detention and transfer to the assembly point;

•

poor medical examination during the mobilization;

•

infringement of rights for draft deferment;

•

violation of the right to alternative service.

The rights of military personnel during the service: •

poor equipment of disciplinary facilities;

•

inadequate equipment of barracks and other residential facilities;

•

poor medical support.

The rights of military personnel in the ATO areas: •

low quality uniforms;

•

inadequate provision of fuel for field barracks;

•

insufficient provision of medicines;

•

Insufficient provision of light-armoured vehicles or evacuation of the wounded from the battlefield;

•

long duration of issuance of documents to get the ATO participant status.

Social and economic rights of military personnel: •

lack of budget for housing;

•

lack of standard pay tariffs;

•

disparity of military pensions;

•

improper termination payments.

Rights of former police officers: •

violation of termination legislation related to the new Law of Ukraine "On the national police";

•

violation of National Police entry legislation;

•

cancellation of privileges envisaged for former police officers.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

OBSERVANCE OF THE SOCIO-ECONOMIC RIGHTS CURRENT STATE OF AFFAIRS A progressive trend of violations of social and economic rights was observed in 2015, as evidenced by the doubled number of petitions. Almost all of them expressed dissatisfaction with the current level of protection of their rights, inaction and indifference of officials at all levels to the problems of people which in some cases were related to matters of life and death, loss of housing, obtaining the necessary medicines and the funds necessary for keeping young children and family.

No expectations for economic stabilization in the country resulting from the government declared reforms were met.

Thus, the pension and social security system proved inefficient, as the quality of social services and other social protection measures are low and social needs of the most vulnerable groups were not met adequately.

No expected reforms in the health care system were in place. Instead, there were cases where people with particularly dangerous diseases were left without essential medicines due to lack of financing for several major government programs and delayed public procurement in 2015.

No steps were taken in the area of development and implementation of active labour market policies to create high-paying, high-tech jobs as the foundation of economic recovery, the state budget filling and achieving social welfare.

The issue of late payment of wages unacceptable in the civilized world remains unresolved in Ukraine. Twenty years of economic reforms in the country have not helped to establish the proper conditions for the enforcing of constitutional guarantees for work that would ensure an adequate standard of living for workers and their families.

Still pending is the issue of extremely low provision of social housing for citizens who are on the housing register and in need of immediate improvement of their living conditions.

The Commissioner's special attention was drawn to ensuring human rights to a safe and healthy environment, affordable and quality housing services.

Observance of the socio-economic rights

41

The lack of transparency of power decentralization is of concern, particularly, in terms of shifting to local governments and budgets for ensuring functions of social guarantees for the citizens established by the Constitution and laws of Ukraine.

ACHIEVEMENTS In 2015, we managed to achieve a closure of certain systemic problems, which were advised to the central executive authorities as a response to petitions. For example: 1) the issue of insufficient legislative regulation in terms of denial of benefits to lowincome families who own over 0.6 hectares of land was solved; 2) the right to state benefit for prisoners not entitled to a pension or those with disabilities was ensured; 3) the issue with including homeless people on the social housing waiting list was solved; 4) free inheritance by family members of a car that had been provided to a disabled person for free by Department of Social Welfare was secured; 5) further to the proposals of the Commissioner for human rights, the Cabinet of Ministers of Ukraine issued Resolution â„–75 "On amending the resolution of the Cabinet of Ministers of Ukraine â„– 1303 dated August 17, 1998 "On regulating free and preferential treatment in case of outpatient treatment of certain groups and in certain categories of diseases" dated October 13, 2015 under which persons with disabilities, recipients of state social benefits were provided with free medicines prescribed by doctors in outpatient conditions.

ISSUES The main problems in the country arising from the lack of results of the declared reforms, further economic decline, closure of industrial enterprises and rising unemployment, underfunding in 2015 of a number of major government programs and failure of government procurement processes, progressing inflation and devaluation of the hryvnia, rapid growth of social and economic inequality that lead to a sharp deterioration of the living standards are as follows: poverty reduction (as evidenced by about 4,8 written petitions from citizens about violation of their rights to social security and adequate standard of living).

Thus, as of January 01, 2016, the pension below subsistence level was received

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

by 656,079 persons, while as of January 01, 2015 their number was 102,708 persons; failure to ensure the right of working people to proper wages, and the right to timely and full payment of wages; failure to ensure the right to social protection of citizens who do not own homes and live in rented apartments without signing the lease contract and do not have registration of residence, whereas the major part of social benefits are assigned at the place of residence; failure to ensure the rights of retired civil servants for a recalculation of the pension amount according to court judgments related to taking into account of financial aid to address the social and domestic issues, rehabilitation benefits and wage indexation when calculating the pension amounts; failure to reassess retirees’ pensions according to court decisions; failure to ensure the right to free travel on public transport to a person entitled to such benefits: failure to ensure the constitutional rights to health care of persons suffering from rare (orphan) diseases; delayed vaccination of children; failure to ensure the rights to timely and effective pain relief for disabled persons and seriously ill patients, particularly for those receiving treatment in special conditions at home; failure of the state to provide social housing for citizens who are on the housing register and in need of immediate improvement in their living conditions; problems with safe and healthy environment; availability and quality of housing services.

Observance of the socio-economic rights

43

TO AMEND THE CURRENT LEGISLATION 1. To improve the mechanism for determining the minimum living wage and the minimum salary and to increase their amounts.

2. To improve the legal mechanisms to encourage employers to create new productive high-tech jobs.

3. To regulate pension issues for those Ukrainians who left for permanent residence abroad.

4. To revise the existing mechanism for assignment (recalculation) of pensions in order to avoid differences between the size of pensions assigned in different years, and to ensure appropriate differentiation of pensions depending on the wages and insurance record.

5. To extend guarantees related to payment of full pensions to working pensioners, including while working in positions that give the right to a pension under the conditions stipulated by special laws, to people with disabilities of all categories and groups.

6. To increase compensation payments to individuals who provide social services and care to the appropriate public categories.

7. To Introduce compulsory state social medical insurance for the population.

8. To increase expenditure to purchase medicines and medical devices needed to prevention and treat diseases that are critical in shaping the overall structure of morbidity and mortality in Ukraine.

9. To align the criteria of obtaining disability and rehabilitation provisions to persons with disabilities in line with the International Classification of Functioning, Disability and Health.

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ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

ENSURING EQUAL RIGHTS AND OPPORTUNITIES FOR WOMEN AND MEN 67 reports of violations of equal rights 92,5%

were received in 2015, 62 (92.5%) of which were associated with violence.

The monitoring was focused on the issues of equal rights in local elections; protection from domestic violence; violence against women in the areas of armed conflict; ensuring equal opportunities to combine the career with family responsibilities.

An expert report was prepared for the draft Law of Ukraine "On amending certain legislative acts concerning equal rights and opportunities for women and men" Registration â„– 1445 dated December 11, 2014).

Participation in the working groups to draft amendments to the election law regarding gender equality in the electoral process; aligning national legislation with Council of Europe Convention on preventing violence against women and domestic violence and combat these phenomena (Istanbul Convention). The Commissioner's proposals were taken into account in developing the following sections: "Ensuring equal rights and opportunities for women and men", "Combating domestic violence", "Combating gender violence", Action plan to implement the national strategy on human rights for the period until 2020.

In order to improve the capacity of local authorities in ensuring equal rights and opportunities for women and men, jointly with the Ebert Foundation, 6 two-day seminars were held in Khmelnitsky, Cherkasy, Poltava, Ternopil, Vinnytsya and Kherson regions.

As part of monitoring the compliance with the rights of the most vulnerable groups of women (rural women, women with disabilities), the Comprehensive study of women living in rural areas (jointly with the UNDP project "Democratization, human rights and development of civil society in Ukraine") was developed and presented and the relevant section of the alternative report of the Commissioner for human rights on the implementation by Ukraine of the Convention on the rights of persons with disabilities (Article 6, Women with disabilities) was prepared.

Ensuring equal rights and opportunities for women and men

45

The Ministry of Social Policy was notified of the need for the National Action Plan on implementation of the resolution of the Security Council â„–1325 (2000) to strengthen protection of women and girls, to ensure their rights in situations of armed conflict.

ISSUES RELATED TO COMBATING VIOLENCE AGAINST WOMEN: lack of institutional protection of women and girls affected by armed conflict; low level of awareness in safe behaviour; lack of interaction between the National Police and social services; collecting data on gender-based violence does not meet international standards and does not contribute to efficient policy to combat this phenomenon; the armed forces are not trained on gender equality before and after deployment in the area of fighting.

46

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

ENSURING RIGHTS OF THE CHILD PRIORITY AREAS OF MONITORING IN 2015: •

ensuring the rights of children in armed conflict;

•

ensuring children's rights in foster families;

•

ensuring children's right to health;

•

ensuring children's right to education

During the year, 1114 reports of violations of children's rights were received, which is 8.5% more than in 2014.

The subjects of the most frequent petitions to the Commissioner were violations of children's rights to

education

health

housing

child support

raising in a family

Special attention was focused on monitoring the rights of children in the area of antiterrorist operations, as well as those of children who were displaced to the territory controlled by the government.

In this regard, the Commissioner issued 7 initiative requests дto the Government and the Security Service of Ukraine about displacing of children to the safe regions of Ukraine and the need for strict observance of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in the armed conflict.

The issues were raised about the need to reissue the paperwork for the orphans who were displaced from orphan institutions; to renew payments of child support in cases where the debtor remains in the uncontrolled territory; to provide housing for orphans and children deprived of parental care; to register IDPs and to provide monthly targeted aid to children who arrived unaccompanied by a legal representative; for access to educational services for children who remained outside the government controlled territory.

Ensuring rights of the child

47

THE ACTIVE COMMISSIONER'S POSITION HELPED RESOLVE THE FOLLOWING ISSUES: •

payments of child support in cases where the debtor remains in the uncontrolled territory;

•

amending the Procedure of monthly targeted aid to Internally Displaced Persons to cover living expenses;

•

amending the Procedure for registration and issuance of certificate of registration for Internally Displaced Persons, which regulates issuing a registration certificate for minors or minors who are displaced without their parents.

In order to monitor the observance of the children's rights in foster families 15 centres сocial and psychological rehabilitation of children in 9 regions were visited.

The monitoring activities helped identify issues that impede exercising of children's rights for family life while placing them in institutions of social and psychological rehabilitation: continuing the practice of social services for families, children and young people providing services only with parental consent; the State funds institutions and not the services that they provide; insufficient control of the children's services over the children's life conditions and formal plans for an individual child welfare.

Due to the worsening situation with children's vaccination, extremely low public spending on procurement of medicines to ensure medical care for children suffering from rare (orphan) diseases, the petitions were issued to the Ministry of Health. The Commissioner initiated a discussion of children's vaccination in Ukraine at a meeting of the Interdepartmental Commission for Child Protection.

Participation in the working groups and review of proposals to draft laws "On education" and "On amending certain laws of Ukraine to strengthen the social protection of children and support to families with children".

Jointly with the OSCE Project Coordinator, the "School of children's rights" was opened at the Ukrainian Children's Centre "Young Guard". The main purpose of the event was to raise awareness of children about the Convention on the Rights of the Child.

The event included 2-day trainings, brain ring, quests, where children from different regions of the country received knowledge on child rights and protection mechanisms, got familiarized with international and domestic law.

48

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

STATISTICAL INFORMATION ON PETITIONS TO THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS IN 2015 Petitions to the Ukrainian Parliament Commissioner for Human Rights in 2015

56 856

total persons who applied to the Commissioner

legal entities

274

849

own initiative

5

18 193

People's Deputies of Ukraine

17 902

citizens of Ukraine, foreigners, stateless persons or their representatives

Registered petitions

19 030

837 Individual petitions

4 142

2 089

by phone

personal appointments Verbal petitions

Collective petitions

@

By e-mail

2 043

petitions

6 231 signed their petitions

50 625

number of persons

Statistical information

49

Review of written petitions submitted to the Ukrainian Parliament Commissioner for Human Rights in 2015

19 030

received written petitions

18 076

954

recognized as not eligible for review

recognized as eligible for review

19 030

16 084

12 392

completed review

opened proceedings

11 251

reinstated rights, partially reinstated rights, provided clarifications

94

submitted to the competent authorities

212

provided clarifications

recognized as not eligible for review

954

551

denied review

50

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

Acts of response of the Ukrainian Parliament Commissioner for Human Rights in 2015

Type of the act of response and authority CONSTITUTIONAL APPLICATION

Number of acts of response issued 4

APPLICATION

129

ACTS OF RESPONSE

9081

ACTS OF RESPONSE (application letters, request letters etc.): Verkhovna Rada of Ukraine

131

Cabinet of Ministers of Ukraine Constitutional Court of Ukraine Supreme Court of Ukraine Supreme Administrative Court of Ukraine High Commercial Court

33 2 4 12 7

High Specialized Court of Ukraine for Civil and Criminal Cases

28

Appellate courts

75

Local courts

791

General Prosecutor of Ukraine

639

Prosecutor regions, cities, districts

1366

MIA

243

Ministry of Internal Affairs of regions, cities, districts Embassies of foreign countries in Ukraine Ministry of Foreign Affairs of Ukraine

357 6 102

Statistical information

Ministry of Energy of Ukraine

19

Ministry of Defence Ukraine

211

Ministry of Education and Science of Ukraine

118

Ministry of Health of Ukraine

174

Regional administrations of MOH of Ukraine

48

Ministry of Social Policy of Ukraine

346

Regional Department of Social Welfare Ministry of Finance of Ukraine

90 10

Ministry of Justice of Ukraine

277

Department of Justice in Crimea, regions, districts

182

Security Service of Ukraine

163 218

State Migration Service State Border Service State Executive Service Pension Fund of Ukraine and regional governance

48 187 219

State Penitentiary Service of Ukraine

769

Public Administrations and their bodies

941 898

Local self-governments Other organizations

345

51

52

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

Number of representatives Number of coordinators

Number of appointments completed

Number of petitions received

Number of persons received

Proposals to initiate proceedings prepared

Number of consultations provided

Number of instructions received

Including related to abuse of right to access to public information, right for application

Number of instructions completed

Summary report on activities of regional offices and regional coordinators for 2015

1/1

220

77

254

32

204

88

40

81

Zaporizhzhia

1

107

70

205

5

180

31

9

31

Zakarpattia

1

57

19

115

2

131

12

2

10

Mykolaiv

1

40

23

73

18

60

40

8

37

Lugansk

1

Twice a week

63

82

-

82

24

-

24

Ternopil

1

198

57

247

23

247

22

11

15

Kirovograd

1

103

62

342

37

413

42

6

41

Odessa

1

8

25

41

16

63

84

7

73

Poltava

1

6

4

4

2

24

17

2

14

Chernihiv

1

61

64

171

14

171

28

8

28

Cherkassy

1

52

75

75

-

75

33

5

33

1/1

184

113

125

10

125

27

9

23

Lviv

2

Daily

284

115

72

113

Dnipropetrovsk

3

Daily

100

100

12

53

60

Kherson

1

8

-

62

-

58

8

-

6

Region

Zhytomyr

Rivne

284

Inspection trips Attending trials Visiting detention facilities (initiated by the Commissioner) Number of written petitions received Number of proposals to initiate proceedings to the Commissioner Number of petitions/requests/ number of responses to petitions Number of activities attended by regional offices Number of disclosed messages about activities of regional offices Number of organized and conducted education events (trainings, seminars, lectures, etc.)

Number of visits to detention facilities under NPM

Statistical information

56

6

2

5

2

4

2

53

72 55 36 72 36 106/98 24 20 9 10

13 74 21 23 5 12/12 10 26 3 2

14 3 5 2/2 9 60 5 22

25 31 19 16 15 8/8 4 3 3

28 6 30 5 5 10/10 11 15 8 31

13 64 17 17 8 13/8 14 30 2 19

34 88 74 34 28 40/37 59 37 45 8

10 101 49 39 14 19/19 23 47 6 16

5

4

15

6

3

6/6

2

5

6

10

9

6

7

64

14

18/17

65

158

8

9

7

22

18

19

-

16/20

6

55

4

8

10

3

9

11

10

8/8/

29

153

35

8

61

94

12

193

186

73/73

2

3

-

3

5

8

54

ANNUAL REPORT OF THE UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

FOR NOTES