Location Ukraine Ukraine

UN: an atmosphere of intimidation has been created in Ukraine

Office of the United Nations High Commissioner for Human Rights has issued special review of human rights in Ukraine “Civic space and fundamental freedoms ahead of the presidential,  parliamentary and local elections in Ukraine in 2019-2020”. We reprint its most essential part here. Notes and paragraphs are given as they were numbered in the report.

 

IV. Trends negatively affecting the exercise of fundamental freedoms

15. Throughout the reporting period, OHCHR documented 164 violations affecting the fundamental freedoms of opinion and expression, peaceful assembly and association, and religion or belief, as well as the right to non-discrimination and equal protection under the law. While documenting a gradual increase (14) of violations affecting journalists and other media professionals, civic and political activists, and defence lawyers, OHCHR notes that a significant number of them relate to attacks allegedly perpetrated by extreme right-wing groups, in most cases with impunity. Even though there was a decrease in violations after 15 November 2018 due to the seasonal lull occurring every new year period, OHCHR is concerned that, if impunity remains unaddressed there is a risk that this will fuel further attacks.

A. Freedom of opinion and expression

On 31 July 2018, a female senior staff of a city council, known for her anticorruption views, was attacked with acid. On 4 November 2018, she died in hospital following complications resulting from her injuries. The organizers of the attack are still not brought to account.

  1. OHCHR observed a pattern of violent attacks and acts of intimidation against journalists and other media professionals, civil society and political activists, as well as defence lawyers throughout the reporting period. These attacks have created an atmosphere of intimidation, which has a chilling effect on people’s ability and willingness to speak openly on issues of public importance, notably to express their disagreement or concerns about policies. The protection of the right to freedom of opinion and expression is particularly essential during times of political change, notably to ensure that the public is well-informed and empowered to safely and freely exercise civil and political rights. Providing the conditions for free and open political communication is an essential element of ensuring fair and democratic electoral processes. (15)
  2. Throughout the reporting period, OHCHR observed a gradual increase of attacks against journalists, including incidents perpetrated in front of cameras during live broadcasting. (16) Investigators often failed to accurately classify these attacks under applicable law, disregarding perpetrators’ motive to disrupt or prevent journalists’ activities. (17) Disregarding such motive that would justify other charges carrying higher sentences leads to impunity on these charges. Investigators thereby deny the particular protection that is afforded to journalists by the law.
  3. In 2018, in at least two separate cases, Ukrainian courts ruled to grant prosecution access to personal data of investigative journalists, including of their sources, which could be perceived as acts of intimidation. (18) These decisions are of concern and could encourage further attempts of authorities to intimidate journalists, foster censorship and discourage their investigative work. (19)
  4. Furthermore, various authorities continued using a broad and inconsistent interpretation of criminal provisions related to terrorism, provisions on high treason and trespassing on Ukraine’s territorial integrity against journalists, bloggers and social media users for publishing or posting and reposting information seen as ‘anti-Ukrainian’.
  5. Moreover, concerns arise about certain legislative initiatives proposing to vest State authorities with wide discretion and power to block online sources which would unduly restrict freedom of opinion and expression. (20)
  6. OHCHR observed an increase in violent attacks against civil society activists in 2018. On 27 September 2018, approximately 70 civil society organizations and political parties participated in an all-Ukrainian rally calling the attention of the public and authorities to attacks against various civil society activists, some of whom worked to expose corruption. Attacks documented by OHCHR in 2018 ranged from spraying acid (21) on victims to gun injuries (22) and caused the death of two activists. (23) Despite the creation of the Special Parliamentary Investigation Commission, investigations into several attacks are not progressing. (24)
  7. Throughout the reporting period, OHCHR documented six cases of attacks and intimidation against defence lawyers involved in high profile cases, including lawyers representing defendants known for their independent views. Notably, these attacks were all committed either by members of extreme right-wing groups or unidentified perpetrators allegedly affiliated with such groups. All these attacks occurred inside or in front of court buildings. OHCHR notes the lack of progress in investigations into such attacks, inadequate security in and around court premises, and failure of law enforcement to effectively prevent and stop such incidents. (25)
  8. The lack of accountability for attacks on civil society perpetrated by extreme right-wing groups also raises concern. (26) Throughout the reporting period, the number of attacks and acts of intimidation documented by OHCHR, involving members of extreme right-wing groups, reached 34. A few of them are currently being investigated. OHCHR documented cases when, despite sufficient police presence, authorities failed to apprehend perpetrators. OHCHR is concerned that such impunity may fuel further attacks.

B. Freedom of association

24. OHCHR documented nine incidents targeting activists affiliated with political parties or organizations, including physical attacks, (27) acts of intimidation, (28) attempts to forcefully enter places of residence, (29) and property destruction. (30) In at least two of these cases, investigators disregarded the status of victims as political activists, which incurs an entitlement to additional protection under national law. (31) At a later stage, one of the cases was re-classified with adequate charges. (32) Several attacks against offices of various political parties throughout Ukraine were carried out by extreme right-wing groups in 2018. In some cases, the perpetrators physically assaulted staff in the offices. (33) Such acts appear to be intended to restrict the activities of certain political parties ahead of the elections, effectively hindering political pluralism and constituting undue restrictions to the freedom of association.

25. OHCHR is concerned by a growing number of legislative initiatives proposing restrictions on freedom of association, such as those aiming at introducing additional reporting requirements for civil society organizations. (34) Furthermore, the elections are increasingly used as a justification to elaborate new restrictive measures, such as requiring organizations “acting directly or covertly in the interests of the Russian Federation” to register as “agents of the aggressor State”, “as means of protecting national interests in the wake of elections”. (35) In this regard, OHCHR notes that States should not stigmatize associations by equating their objectives to those of foreign agents. (36)

26. OHCHR remains concerned that the widely criticized e-declaration requirements imposed on anti-corruption activists in March 2017 (37) remain in force contrary to the recommendations of the Venice Commission. (38)

C. Freedom of peaceful assembly

On 19 August2018, a group of unknown perpetrators violently attacked an antidiscrimination event in Mariupol. The police is investigating the incident as ‘hooliganism’, disregarding possible additional classifications based on the motives of the attack.

  1. Throughout the reporting period, OHCHR documented 17 violations of the right to freedom of peaceful assembly. All of these violations affected assemblies that were organized by minority groups or those representing alternative opinions. In ten documented incidents, police failed to protect the safety of those involved in the assemblies and to take measures against those who attacked or violently disrupted the events. (39) Instead, police officers apprehended participants in public assemblies, issued warnings of dispersion, or physically pushed participants from the venue.
  2. At least in seven cases, the perpetrators of attacks were members of extreme right-wing groups. In some of the cases, police officers failed to apprehend perpetrators either during or immediately after they had attacked or disrupted peaceful assemblies. Such acts limit the space for civil society groups to freely express their views, which is important ahead of the upcoming elections. Ensuring the right to peaceful assembly is essential in order to campaign and participate in public rallies, take part in voter education activities, cast votes, observe and monitor elections and hold candidates and elected officials accountable in case of violations. (40)
  3. While OHCHR welcomes measures taken by the police to ensure public safety during mass public assemblies (41) in several Ukrainian cities in 2018, LGBTQI (42) gatherings in smaller cities, such as Chernivtsi or Mariupol, lacked sufficient protection. Also, OHCHR documented cases where the Security Service of Ukraine (SBU) prevented organizers from participating in public assemblies, for example a counter-demonstration to an official commemorative event, using informal warnings or summoning them for ‘a conversation’ on the day of the event.(43)

D. Freedom of religion or belief

On 29 June 2018, a church in Odessa was robbed and desecrated. The police launched a criminal investigation into the fact of robbery, while disregarding a possible additional classification as hate crime.

  1. Although tensions between Orthodox communities in Ukraine existed prior to the armed conflict in eastern Ukraine, they have been significantly exacerbated by the ongoing autocephaly process. (44) Throughout the reporting period, OHCHR documented 10incidents of threats and acts of intimidation against clergy and parishioners mainly affecting the Ukrainian Orthodox Church (of the Moscow Patriarchate). (45) OHCHR is concerned that the current political environment further contributes to tensions negatively impacting the freedom of religion or belief, with possible negative consequences for other human rights, including the right to freedom of opinion and expression, ahead of elections.
  2. In November 2018, following the refusal of the Ukrainian Orthodox Church to join the newly established Orthodox Church in Ukraine, the Security Service of Ukraine (SBU) launched a series of criminal investigations into allegations of incitement to religious hatred, with the additional charge of high treason in at least one case, without issuing notices of suspicion. In the context of these investigations, SBU searched the property of the Ukrainian Orthodox Church and the homes of the clergy hierarchy. SBU also interrogated clergymen in different regions of Ukraine. (46) Individuals interviewed by OHCHR, reported that such actions put them under pressure and said that despite the absence of direct threats or coercion, they considered these as attempts to influence their position on autocephaly.
  3. On 20 December 2018, the Parliament voted to begin the mandatory renaming of the religious organizations affiliated with religious centres in the Russian Federation, primarily targeting the communities of the Ukrainian Orthodox Church. (47) The Parliament also adopted restrictions on the access of clergymen of such organizations to the premises of the Armed Forces of Ukraine on the basis of national security considerations. This contravenes article 18(3) of the International Covenant on Civil and Political Rights as national security is not a permissible ground for a restriction of freedom of religion or belief. (48)

 

Notes

14 In the course of 2018, OHCHR documented 41 violations of fundamental freedoms between16 February and15 May, 45 violations between 16 May and 15 August, and 59 between 16 August and 15 November.

15 See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 2 July 2014 (A/HRC/26/30, para 11).

16 See OHCHR Report, 16 August –15 November 2018, para 73.

17 Despite of clear signs of other crimes, some of these attacks are classified only as ‘hooliganism’, which would lead to amilder punishment.

18 See OHCHR Report, 16 August –15 November 2018, para 75.

19 In one of these cases, it was the first time the European Court of Human Rights applied interim measures under Rule 39 of the Rules of Court to the case pertaining to freedom of expression in Ukraine.

20 Draft law no.6688 ‘On amendments to certain legislative acts of Ukraine concerning counteraction to threats to national security in the information sphere’, 12 July 2017. See OHCHR Quarterly Report 16 May –15 August 2018, para 85.

21 On 17 July 2018, in Kyiv, an anti-corruption activist was sprayed with Brilliant green (zelenka) during a rally demanding the resignation of the Head of the Special Prosecutor’s Office for anti-corruption. the victim suffered from chemical burns to the eyes. On 31 July 2018, Kateryna Handziuk, a senior staff member of the Kherson city council, known for her advocacy against corruption, was attacked with acid.

22 On 22 September 2018, an activist, known for his criticism of local authorities, was shot near his house in Odessa. The bullet was extracted from his body in January 2019 and he still requires intensive care.

23 This refers to two lethal cases: an incident in Kharkov region, when an anti-corruption and environmental activist Mykola Bychko was found hanged in Eskhar village, and the death of Kateryna Handziukin hospital following complications resulting from injuries after an acid attack.

24 OHCHR meeting with member of the Special Parliamentary Investigation Commission, 18 January 2019.

25 See OHCHR Quarterly Reports 16 May –15 August 2018, para 99; and 16 August –15 November 2018, para 60.

26 A/HRC/39/28Report of the Office of the United Nations High Commissioner for Human Rights.

27 OHCHR interviews, 12 October and 9 December 2018.

28 OHCHR interview, 10 September 2018.

29 OHCHR interview, 12 October 2018.

30 Activists were allegedly attacked for their political activism.

31 In particular this refers to Article 346 of the Criminal Code of Ukraine which prescribes liability for threats or violence against State or civic actor.

32 OHCHR interview, 9 December 2018. The victim told OHCHR that the police had initially classified the attack as hooliganism but later re-classified it as an “attack against a State or civic actor”.

33 OHCHR interview, 7 January 2019.

34 Draft law no. 6674 ‘On amendments to certain legislative acts of Ukraine concerning transparency of information on financing of the activities of public associations and the use of international technical assistance’, 10 July 2017. This bill failed the vote in Parliament on 3 April 2018; Draft law no. 8501 ‘On amendments to certain legislative acts of Ukraine concerning transparency and openness of information on the activities of charitable organizations and public associations receiving funding from foreign countries and foreign non-governmental organizations’, 20 June 2018. Pending review in the Committee.

35 Statement of parliamentarian Maksym Burbak, at the coordination meeting in Parliament, 17 September 2018. On 20 September 2018, during his annual address in Parliament, President Poroshenko expressed support for such a legislative initiative, stating that “this law will in no way affect civil society, mass media and freedom of speech”.

36 A/HRC/38/34, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association,13 June 2018, paras 34-36.

37 Law of Ukraine ‘On amendments to article 3 of the law on prevention of corruption’ no. 1975-VIII, 23 March 2017.

38 Joint opinion (CDL-AD(2018)006) adopted by the Venice Commission at its 114th Plenary Session (Venice, 16-17 March 2018). According to the law, the heads and members of boards of anti-corruption organizations had to submit their annual declarations on annual basis. See OHCHR Quarterly Report 16 February–15 May2018, para 87.

39 The State has a positive obligation to facilitate peaceful assemblies, which includes the protection of participants from individuals or groups of individuals, including agents provocateurs and counter-demonstrators, who aim at disrupting or dispersing such assemblies.A/HRC/20/27, p 8, para. 27.

40 A/68/299, Rights to freedom of peaceful assembly and association, Note by the Secretary-General, 7 August 2013, para 6.

41 This refers to celebrations of the Day of Defender of Ukraine, the processions of parishioners of the Ukrainian Orthodox Church (of Moscow Patriarchate) and Ukrainian Orthodox Church of Kyiv Patriarchates, as well as Equality Marches in Kyiv and Odessa. During mentioned assemblies OHCHR observed sufficient security and adequate protection of participants by the police.

42 In this report, the acronym LGBTQI refers to lesbian, gay, bisexual, transgender, queer and intersex individuals and relevant communities. OHCHR is aware of an incompatibility of views with some of mentioned groups. This term is used as a broad description to cover as many individuals as possible who face discrimination based on sex and gender identity.

43 In particular, this refers to assemblies held on commemorative dates for World War II or gatherings to commemorate victims of the violence that occurred on2 May 2014 in Odessa.

44 While the Ukrainian Orthodox Church of Kyiv Patriarchate (hereinafter UOC KP) and the Ukrainian Autocephalous Orthodox Church supported and later joined the process of receiving autocephalous(independent)status from Ecumenical Patriarchate, the Russian Orthodox Church and the Ukrainian Orthodox Church, repeatedly referred to this as interference in internal canonical matters. On 6 January 2019, a newly established Orthodox Church in Ukraine received autocephaly from the Ecumenical Patriarchate and was still awaiting registration as an official religious organization in Ukraine as at February 2019.

45 Often referred to as the Ukrainian Orthodox Church –Moscow Patriarchate to differentiate it from the UOC KP, but according to the official registration (data retrieved in January 2019) it is the Ukrainian Orthodox Church and will be referred to as such.

46 A criminal case under these charges was opened on 21 November, eight days after the Ukrainian Orthodox Church publically announced its refusal to support autocephaly.

47 According to the Law of Ukraine no. 2662-VIII of 20 December 2018, a religious organization that is structurally affiliated with a foreign religious organization, the governing centre of which is located in the country, recognized as an “aggressor State”, should reflect in its official name that of the religious center is in such foreign state. Failure to follow this requirement within a four months deadline may render void the charter of the organization “in the part defining its full official name”.

48 The United Nations Human Rights Committee, in its general comment No. 22 (1993) (para. 8) emphasized that Article 18(3) of the International Covenant on Civil and Political Rights permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. This paragraph is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security.

https://www.ohchr.org/Documents/Countries/UA/CivicSpaceFundamentalFreedoms2019-2020.pdf

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