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III. STATUS OF OBSERVANCE AND PROTECTION OF THE RIGHTS OF SPECIFIC CATEGORIES OF UKRAINIAN CITIZENS ABROAD

2. OBSERVANCE OF THE RIGHTS OF UKRAINIAN CITIZENS DEPRIVED of libeerty ABROAD

ANALYSIS OF STATISTICAL DATA

Quite a few of the appeals addressed to the Commissioner for Human Rights concern Ukrainian citizens deprived of their liberty. Allowing for their specific status, this category of our countrymen is the most vulnerable among all Ukrain­ian citizens who are abroad and, therefore, requires additional attention of the government.

A large number of the detained and arrested Ukrainian citizens are migrant workers who violated the rules of stay and employment on the territory of other countries.

Apart from that, our countrymen are frequently suspected and charged with more serious offense and crimes, such as theft, robbery, holdups, extortion and fraud; offenses against the life and health of persons: hooliganism, infliction of bodily injury, murder, rape; drug traffic; violation of traffic rules, and the like.

According to the data of Ukrainian diplomatic missions and consular posts abroad reported at the collegium of the Ministry of Foreign Affairs on December 19, 2002, in which the Commissioner for Human Rights took part, some 10,000 Ukrainian citizens were arrested (detained) for one or another reason at October 2002, while more than 2,500 were serving sentences delivered by foreign courts.

By the information of 82 Ukrainian consular posts in 69 countries, the corresponding figures in 2000-2001 were as follows: 6,918 arrested for offenses and 2,967 enduring sentences in 2001; 6,267 and 2,936 respectively in 2000.

In 2000 and 2001, the largest number of arrested and sentenced Ukrainian citizens was registered in Poland, Russia, Greece, Germany, the Czech Republic and Belarus.

In 2002 as well, the situation did not change for the better. Besides, there has been an upward trend of detention of Ukrainian citizens in Spain during the past three years: 114 in 2000, 731 in 2001, and 1,117 in the first six months of 2002 alone.

Also, in 2002 a growing number of arrested and sentenced Ukrainian citizens were registered in such countries and Portugal and the US.

However, in Poland and Russia in 2002 there was a downward trend in the number of detained Ukrainians. In Greece the number of arrested Ukrainians went down substantially (1,637 in 2000, 1,020 in 2001, and 94 in the first six months of 2002), while the number of sentenced remains almost invariable (31 in 2000, 37 in 2001, and 32 in the first six months of 2002). Following are the ratios of arrested and sentenced Ukrainian citizens on the territory of foreign states (Fig.3.1).

Fig.3.1. Countries with the largest number of Ukrainian citizens deprived of liberty in 2002

But these numbers may be greater, because Ukrainian consular posts do not always know about the arrest (detention) or our citizens.

Referring to the Vienna Convention on Consular Relations of 1963, the law enforcement agencies of some nations, such as Canada and the EU countries, inform the foreign diplomatic missions and consular authorities about the arrest of their citizens only upon request of the arrestees. A number of countries violate the provisions of bilateral consular agreements that bind them to inform Ukrainian consular posts about the arrest (detention) of Ukrainian citizens.

LEGAL FRAMEWORK OF PROTECTION OF THE RIGHTS OF UKRAINIAN
CITIZENS DEPRIVED OF LIBERTY ON THE TERRITORY OF FOREIGN STATES

(International standards and national legislation)

Since deprivation of liberty is a serious restriction of the rights of any person, the mechanisms of their protection traditionally merits special attention in both national legislation and in international legal instruments.

The majority of countries worldwide recognize and undertake to comply with the international standards of protecting the rights of arrested (detained) and sentenced persons, as secured in such international documents as the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, Convention for the Protection of Human Rights and Fundamental Freedoms 1950, UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987.

Article 9 of the International Covenant on Civil and Political Rights and Article 5 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment enshrines the most important safeguards of a person’s freedom and inviolability:

§ no one shall be subjected to arbitrary arrest or detention;

§ no one shall be deprived of his liberty save in accordance with a procedure prescribed by law;

§ anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him;

§ anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful;

§ anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights contains a minimum scope of rights of a person arrested (detained) on charges of criminal offense, in ­particular:

§ to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

§ to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

§ to have the free assistance of an interpreter if he cannot understand or speak the language used in court;

§ to be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The referred to international documents contain principles under which each member state is bound to respect and ensure the rights and freedoms stipulated in these documents for all its own citizens as well as aliens and stateless persons within its borders and under its jurisdiction.

Apart from these rights, every alien by virtue of his affiliation to the citizenship of a definite state is also entitled to diplomatic protection of the country of his citizenship, which, as a rule, is vested with corresponding consular posts. This also refers to Ukrainian citizens deprived of liberty abroad.

Ukraine’s consular relations with foreign states are based on multilateral and bilateral agreements as well as generally recognized principles and rules of international law with due allowance from the legislation of the countries concerned.

For instance, the rights and duties of diplomatic missions and consular posts of our country with regard to the protection of Ukrainian citizens, who are arrested (detained), sentenced or otherwise deprived of liberty on the territory of foreign states, are secured in the Vienna Convention on Consular Relations 1963, of which Ukraine is a signatory.

Article 36 of this Convention sets out the basic guarantees of the activity of consular posts and officers as to the protection of the rights of their citizens who for one or another reason were deprived of liberty on the territory of the country of stay, in particular:

§ consular officers shall be free to communicate with nationals of the sending State and to have access to them (foreign citizens deprived of liberty enjoy the same right);

§ if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner;

§ any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded to the said authorities without delay;

§ the said authorities shall inform the person concerned without delay of his above-mentioned rights;

§ consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.

The Vienna Convention on Consular Relations also stipulates that the laws of the country of stay should facilitate in full the exercise of the referred to rights and safeguards.

The majority of countries have acceded to the Vienna Convention on Consular Relations (160 as of January 1, 2000).

The functions of Ukraine’s consular posts relative to the protection of Ukrainian citizens are also secured in many bilateral consular treaties (conventions, agreements) signed with foreign states. There are several score of such treaties. Most of them set out in detail and supplement the provisions governing consular protection, with allowance for the specifics of bilateral relations.

A number of agreements include provisions to the effect that competent bodies of each party are bound in all cases to inform without delay (as a rule, within three days) the consular post of the other contracting party accredited on its territory about facts of arrest (detention) of its citizen. Yet the Vienna Convention on Consular Relations stipulates that parties are obliged to communicate such information only when requested by the citizen who is deprived of liberty.

Apart from the referred to international legal instruments on the protection of the rights of Ukrainian citizens detained (arrested) and sentenced on the territory of foreign stations, the consular officers of our country take guidance from the provisions of the Consular Statute of Ukraine approved by Presidential Edict of April 2, 1994.

Central within this context is Article 39 of the Consular Statute, under which a consul is obliged to watch whether in relation to Ukrainian citizens deprived of liberty for one or another reason on the territory of a foreign state were kept the laws of the country of stay and the conditions of the treaties concluded between Ukraine and this state as well as the international agreements to which Ukraine and the country of stay are parties. Besides, a consul is bound to take measures for the restoration of the violated rights of Ukrainian citizens.

Upon request of the persons concerned and on his own initiative, a consul is obliged to visit Ukrainian citizens deprived of liberty and watch over compliance with the sanitary and hygienic conditions of their custody and with the requirements to the prevention of torture and inhuman or degrading treatment or punishment. For this purpose a consul is bound under all circumstances to insist on a personal meeting with the Ukrainian citizen to become convinced that the latter is not victimized or deprived of his rights.

ANALYSIS OF THE STATUS OF OBSERVANCE OF THE RIGHTS OF UKRAINIAN CITIZENS DEPRIVED OF LIBERTY ABROAD

An analysis of the complaints addressed to the Commissioner for Human Rights as well as the information provided by the Ministry of Foreign Affairs of Ukraine proved that our citizens deprived of liberty abroad suffer from a number of serious violations of their rights and freedoms, such as:

§ violations of the requirements of the Vienna Convention on Consular Relations 1963 and Ukraine’s bilateral consular treaties as to informing Ukrainian consular posts about the detention (arrest) of Ukrainian citizens on the territory of the host country;

§ violation of our citizens’ rights concerning prompt notification of Ukrain­ian consular posts;

§ gross violations of laws on criminal procedure during arrest (detention), pretrial investigation, and trial, in particular:

§ delay in notifying the reasons and grounds for detention (arrest);

§ delay in ensuring the rights of detainees (arrestees) and convicts to legal protection and services of an interpreter; low qualification of government-appointed counsel and interpreters;

§ biased and discriminatory attitude to Ukrainian citizens by legal investigators and judicial bodies of the host country;

§ long periods of pretrial investigation and judicial review of criminal cases;

§ unsatisfactory conditions of custody (specifically violations of sanitary and hygienic standards, bad food and medical services);

§ abuse by enforcement bodies of foreign states: threats, torture, inhuman or degrading treatment, demand for bribes.

Most of the complaints are addressed to the Commissioner from the relatives of Ukrainian citizens deprived of liberty abroad.

The relatives cite facts about violated rights and ask additional information about the circumstances of detention (arrest), conditions of custody, and the progress of pretrial investigation. Frequently the complainants cannot establish direct contact with our consular posts to obtain the needed information. Some receive responses with great delay or do not receive them at all.

Any information about the nature of the charges and the location of the detainees, especially at the initial stage of their detention, is extremely important for the protection of their rights and freedoms. In this case relatives are in a better position to come to their help by hiring a lawyer, passing on money or food, visiting the detained, or simply writing a letter of moral encouragement.

In the opinion of the Commissioner, the Ministry of Foreign Affairs should devise more specific internal procedures for providing information to relatives of the detained (arrested) Ukrainian citizens (in particular, its sequence and amount), taking into consideration the real possibilities of our consular posts abroad. This would reduce the complaints against the failure of consular authorities to respond to inquiries.

ENSURING PROPER CONDITIONS OF CUSTODY OF UKRAINIAN CITIZENS ABROAD

According to the information of the Ministry of Foreign Affairs, the conditions of custody of Ukrainian citizens abroad are, on the whole, satisfactory, except for what occurs in some countries of the CIS, Africa and the Middle East.

This problem merits a lot of attention by the Commissioner for Human Rights. Every time during visits abroad the Commissioner requests to see the places where our citizens are confined (as was the case in Russia, Poland, Greece and China). In cases when the rights of our countrymen are violated, the Commissioner draws the attention of competent bodies of the receiving state and Ukrainian diplomatic missions to such facts.

Such inspection tours are often conducted jointly with the ombudsman of a respective country.

During an official visit to the Russian Federation in March 1999, the Ukrain­ian Parliament Commissioner for Human Rights and the Commissioner for Human Rights in the Russian Federation, Oleg Mironov, visited an isolation ward near Moscow where quite a few Ukrainian citizens were confined. The inspection revealed violations relating to the conditions of confinement of Ukrainian citizens and other detainees. Such violations are typical of most of the penitentiary establishments of Russia. The Commissioner for Human Rights in the Russian Federation, Oleg Mironov, cited among the reasons the extraordinary overcrowdedness (the average confinement area per one detainee occasionally exceeded three-four times the generally recognized world standards), bad food and inadequate medical services, high morbidity of tuberculosis, AIDS and other dangerous diseases; and unsatisfactory sanitary and hygienic conditions of custody (sleep by shifts [frequently without mattresses and bed linen], presence of lice, inadequate lighting and ventilation).

Such conditions persist practically in all the former Soviet republics that after the collapse of the USSR suffered a deep economic crisis and had to grapple with serious socioeconomic problems. Given such conditions, compliance with the rights of detainees was relegated to the background, especially in Moldova and Belarus where, just like in Russia, a large number of our countrymen are confined. When most of these countries joined the Council of Europe and acceded to international legal instruments on human rights, the attitude to the latter changed for the better, although at an all too slow pace. The referred to problems are also true for the places of confinement in Ukraine (discussed in greater detail in the annual reports of the Ukrainian Parliament Commissioner for Human Rights).

In the countries of Central and Southern Europe, the situation is somewhat better, but there, too, certain problems arise, e.g. in Poland, Hungary, Slovakia, Romania, Turkey and Greece.

During fact-finding trips to Poland, the Commissioner for Human Rights visited some penitentiaries, in particular a prison in Bilolenka and an investigatory isolation ward in Cracow where Ukrainian citizens are confined.

On the basis of the observations as well as a monitoring conducted by the Commissioner for Civil Rights Protection of the Republic of Poland it can be concluded that the penitentiary system of that country is much better than in Ukraine. Throughout the 1990s Poland managed to make good headway in improving the conditions in its penitentiary establishments by, specifically, increasing the confinement area per every inmate, providing adequate food and medical services, and even granting leaves during imprisonment. When at a meeting with detained Ukrainians in the prison of Bilolenka the Commissioner for Human Rights suggested that the Ukrainians continue serving their sentences in their homeland, all of them refused, arguing that the conditions of custody in Poland were much better. Yet a part of the inmates complained against the abasement of their human and national dignity when the Polish police apprehended them.

During a visit of the investigatory ward in Cracow, made together with the Ukrainian consul, none of the Ukrainian citizens complained about their conditions of custody. The only complaint came from a detainee whose request was ignored by the administration when he asked to order glasses because of his poor eyesight. After the intervention of the Commissioner the problem was settled.

In the Czech Republic problems of confinement arise now and then, especially as concerns the violation of sanitary standards of confinement. These and other reasons caused numerous mass strikes at penitentiary establishments. In the autumn of 2000, as the Ukrainian Embassy in the Czech Republic informed, 6,000 inmates in different Czech penitentiary establishments staged a hunger strike and other actions of protest against the overcrowdedness of prisons (sometimes twice the normal standards) and demanded that their personnel be changed. The authorities took some measures to settle the conflict, but the next year, in October 2001 new hunger strikes broke out, this time involving 200 inmates from the CIS countries (mostly Ukrainian citizens). The confrontation was provoked by a conflict between a guard at Valdice prison and a Ukrainian inmate. In July 2002 the Ukrainian inmates went on a hunger strike again.

In 2001, during a working visit to the Hellenic Republic, the Commissioner for Human Rights, together with representatives of the consular department of the Ukrainian Ministry of Foreign Affairs, visited a deportation prison for women, from Ukraine included. During the visit a lot of violations of their custody were detected: the women were denied walks outdoors, their food was horrible, up to 20 inmates shared one cell and slept on the floor, assignment of counsel was out of the question, and deportation was being delayed for months. Apart from the Ukrainians, the same horrible conditions were the lot of 200 women from 10 countries, such as Albania, Macedonia, Moldova and Russia. Their only hope was the visit of the Ukrainian Commissioner. The unexpected visit was commented on by the leading newspapers of Greece. The next day the Commissioner for Human Rights met with the Minister of Justice of the Hellenic Republic and the managers of the Association of Lawyers of Greece. The conditions of confinement were immediately changed, all the women were permitted to have walks outdoors, and the Commissioner managed to free three Ukrainian women and bring them back home on an airplane.

Proper conditions of confinement depend on the general state of the penitentiary system in each individual country. Therefore, cardinally improving the conditions of confinement for Ukrainian citizens is extremely difficult, since they cannot be much better than the conditions for citizens of other countries.

In the opinion of the Commissioner, Ukraine’s consular posts abroad should constantly monitor the conditions of confinement of Ukrainian citizens and take all possible measures to protect their rights in case of violations.

safeguarding THE RIGHTS OF UKRAINIAN CITIZENS DEPRIVED OF LIBERTY ON THE TERRITORY OF FOREIGN STATES

Right of Ukrainian citizens to consular protection. The right to consular assistance is an extremely important mechanism for the protection of Ukrainian citizens deprived of liberty abroad. In some countries obstacles are put in the way of the exercise of this right, such as establishing communication with consular officers and arranging visits with them.

As the Ukrainian Embassy in the Russian Federation informed, the main problem during the detention (arrest) of Ukrainian citizens in Russia is that Russian law enforcement bodies frequently violate the provisions of the Consular Convention between Ukraine and the Russian Federation insofar as they concern the duty of competent bodies of Russia to notify Ukraine’s consular posts without delay but not later than within three days about the detention, arrest or any other restriction of a Ukrainian citizen’s liberty (Article 13 of the Consular Convention). This denies the consular authorities the opportunity to visit detainees on time or get into contact with them to provide legal assistance. Besides, the detained Ukrainian citizens often do not insist on their right to meet with or telephone to a Ukrainian consular employee.

These facts are also confirmed by the appeals addressed to the Commissioner for Human Rights. For instance, O.Rusyniak, a resident of Tovste in Ternopil oblast, complained that her son was arrested in Moscow in August 1999. Neither the complainant nor the Ukrainian Embassy in Russia was notified about the arrest. The Commissioner for Human Rights set in motion an investigation and forwarded a letter to the Russian Ombudsman. The latter addressed an inquiry to the Kuntsevo inter-district public prosecutor’s office in Moscow with a request to investigate this case.

Similar problems also arise in other countries, such as Kazakhstan, Poland and Libya. As the Ukrainian Embassy in Kazakhstan informed, in the majority of cases the law enforcement bodies of that country are late in notifying the embassy about the detention (arrest) of Ukrainian citizens.

An analysis the Commissioner for Civil Rights Protection of the Republic of Poland conducted in 2000 upon the request of the Ukrainian Parliament Commissioner for Human Rights revealed that in two cases the Polish police violated the provisions on notification stipulated by the Consular Convention between Ukraine and the Republic of Poland. The Polish Ombudsman forwarded respective letters to the Ministry of Justice and the Attorney General for them to curb such violations in the future.

The Ukrainian Embassy in Libya also informed the Commissioner about cases when Libyan law enforcement bodies denied detained (arrested) Ukrainian citizens the right to notify their whereabouts to consuls.

In the opinion of the Commissioner for Human Rights, these problems should be constantly in the focus of attention during bilateral talks and consultations at all levels in the countries where the referred to infringements have been registered. Accordingly, the Ukrainian side should take proper measures to safeguard the right of aliens to consular protection by the countries of their origin.

Ensuring legal assistance to Ukrainian citizens abroad. The right to legal assistance of every person, who has been detained (arrested) on suspicion or charges of committed offenses, is one of the basic procedural human rights.

Perhaps the largest number of problems arises in this respect, as evidenced by the complaints to the Commissioner. In their letters, the complainants cited cases when their rights to protection were impaired, such as denial of counsel, especially at the stage of pretrial investigation. Even when legal assistance is provided, the quality of performance of the defense counsel is frequently the cause of a lot of complaints. Such facts are especially typical of the CIS countries and some countries of Western and Eastern Europe (Poland, Slovakia, Hungary and the Czech Republic). To this effect L.Olexenko, O.Rusyniak and O.Yalovetska addressed complaints to the Commissioner on behalf of their relatives held criminally liable in Poland, Russia and Spain respectively.

L.Olexenko repeatedly appealed on behalf of her son I.Breiter who was arrested for an offense in Poland and was not provided with effective counsel during the pretrial investigation and judicial review. She wrote that the government-appointed counsel was not adequately defending the interests of the accused and evaded participation in the sessions of the court. In response to the inquiry by the Commissioner, the Ukrainian Embassy in Poland informed that the cited facts did not exactly correspond to the real circumstances of the case, but it took additional measures to safeguard I.Breiter’s right to proper legal defense. Besides, the Commissioner for Human Rights reached an agreement with the Ukrainian Foreign Legal Collegium (UFLC) on additional assistance for the protection of I.Breiter’s rights. Following the taken measures, he was freed in early 2003.

During the Commissioner’s visit to the investigatory ward in Cracow, all the Ukrainian citizens confined there wished that they had more effective legal assistance.

The Ukrainian Embassy in Poland points out the low quality of defense by appointed counsel as the principal problem that negatively affects the defense of Ukrainian citizens in the course of pretrial investigation and judicial review. This problem was repeatedly brought to the attention of competent bodies in Poland, but so far nothing has radically changed.

This problem is especially acute in Russia where, as Ukrainian consular posts inform, counsel for the defense is of slender efficiency: not all lawyers engaged to defend the accused Ukrainian citizens perform their work conscientiously, even when awarded substantial fees. For instance, Ukrainian citizens forwarded to the Ukrainian Consulate-General in St.Petersburg several complaints against the low-quality work of lawyers. The consular employees took measures to rectify this situation.

Inadequate legal assistance and bad faith of defense counsel are frequently manifested not only in criminal but also in civil cases, specifically during claims for material and moral damages.

Upon the request of the Commissioner, the UFLC informed that it came across quite a few cases when foreign lawyers performed poorly in defending Ukrainian citizens, in particular in Portugal, Italy and some other countries. Occasionally, the lawyers appropriated a lion’s share of the cash indemnity that belonged to the aggrieved or relatives of deceased Ukrainian citizens.

Since our countrymen do not know their own rights, local laws, and language, they become an easy prey for unscrupulous lawyers. The experience of the UFLC proves that the attempts of our countrymen to deal with legal problems “locally” do not produce the desired results.

Apart from the most scandalous and blatantly publicized cases, Ukraine’s consular posts, overburdened with routine duties that they are, have little time to regularly check the activity of foreign lawyers.

In order to improve the legal protection of our citizens abroad, the Commissioner for Human Rights suggests taking the following measures:

§ provide for expenditures in the budgets of Ukrainian consular posts to pay for legal assistance to Ukrainian citizens charged with offenses or crimes on the territory of a host country, when such assistance is required for ensuring efficient delivery of justice and exercise of human rights (along with the establishment of clearly defined criteria for the selection of cases that require funds for buttressing legal defense);

§ consular posts should establish close contacts with lawyers specializing in defending the rights and interests of aliens in order to set up and maintain a database of the most experienced and reliable lawyers who can be recommended to Ukrainian citizens charged with offenses;

§ draw up consular reports on lawyers performing their duties in bad faith during the defense of Ukrainian citizens’ rights.

Compliance with procedural rights during arrest (detention), pretrial investigation, and judicial review. The flaws in national legislation and the judicial system in some countries as well as the biased attitude to Ukrainian citizens frequently, apart from non-compliance with the right to effective legal defense, result in violations of the Ukrainian citizens’ procedural rights.

The Ukrainian Embassy in Poland informed that in 2001 and in the first six months of 2002 its consular service received 88 complaints of our citizens against violations of their rights during pretrial investigation.

Quite a few identical complaints are also addressed to the Commissioner for Human Rights. In such cases the Commissioner cooperates with ombudsmen of other countries to settle the problems. Occasionally, the Commissioner also cooperates with Ukrainian consular posts abroad.

For instance, in early 2002 the Consul-General of the Ukrainian Embassy in Poland, Anatoliy Hamaliy, addressed the Commissioner about the matter of Ukrainian citizens R.Filoneko and M.Liushch who were charged with assaulting a Polish woman. From the moment they were apprehended the accused insisted that they were not involved in the offense and the victim mistakenly identified them as the culprits. Serious violations of operative Polish laws of criminal procedure were detected in this case: the accused were not provided with an interpreter at the stage of apprehension; the identification by the victim was handled improperly; the counsel neglected his duty when defending R.Filonenko; and the pretrial investigation officers examined the documents submitted by the accused with prejudice, not taking into account the evidence of eyewitnesses and other facts confirming the alibi of the accused. After the intervention of consular officials the District Court of Radom acquitted M.Liushch on January 8, 2002. As to R.Filonenko, the court passed a guilty verdict and pronounced a five-year prison sentence. The verdict was appealed by the accused and the case referred to the Court of Appeals of Lublin, while he remained in the isolation ward of Radom. Upon the request of the Ukrainian Parliament Commissioner for Human Rights the Commissioner for CivilRights Protection of the Republic of Poland scrutinized the case of R.Filonenko and informed that the Court of Appeals of Lublin, taking into consideration the procedural violations, reversed the verdict of the District Court of Radom and referred the case for reconsideration.

Not rare are also cases of biased treatment of Ukrainian citizens in the Czech Republic, even of those who reside and work there legally. This is manifested during arrest (detention), pretrial investigation, judicial review, and delivery of decisions.

An example in point are the cases of V.Patsai of Drohobych and S.Kachmar of Ternopil, which were investigated by the Commissioner jointly with the Ukrain­ian Embassy in the Czech Republic so as to ensure an impartial and objective judicial review.

The application of preventive measures alternative to detention is a problem that directly affects the exercise of the rights of Ukrainian citizens, especially at the initial stages of investigation.

As a rule, all Ukrainian citizens who are apprehended abroad are automatically arrested and practically no alternative measures are applied, such as bail or recognizance not to leave.

As the Ukrainian Embassy in Hungary informed, the courts of this country satisfy, as a rule, the requests of investigators and public prosecutors for detaining in custody Ukrainian citizens charged with offenses. Local courts do not often apply such a preventive measure to Hungarian citizens.

Similar practices are also imposed in the Russian Federation where measures alternative to detention are almost never applied to our citizens. This problem was brought to the attention of the Ombudsman of Russia, Oleg Mironov, during the visit of the Ukrainian Parliament Commissioner for Human Rights to the Russian Federation.

Law enforcement agencies and courts of some countries frequently explain that they resort to such practices for fear that the aliens might evade investigation and trial.

In the opinion of the Commissioner, it is necessary to raise the question of replacing detention in case of minor offenses or in relation to Ukrainian citizens who have permits for permanent residence or close family ties on the territory of a respective country. In any case, a differentiated approach should be applied depending on the definite circumstances of a case.

In accordance with item 3, Article 9 of the International Covenant on Civil and Political Rights: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise, for execution of the judgment.” Ignoring such requirements essentially amounts to discrimination on grounds of citizenship, which should not be beyond the attention of Ukraine’s consular posts abroad.

A lot of violations of the rights of Ukrainian citizens occur during their detention (arrest) by law enforcement bodies of the host countries. The acuteness of this problem is evidenced by that fact that in 10 months of 2002, after direct interventions by Ukraine’s diplomatic missions, 1,053 Ukrainian citizens were released from custody, primarily in the CIS countries and Central Europe (specifically Poland and the Czech Republic).

An awfully sad incident occurred on January 28, 2001 in Poland when the county police of Zwidnik mortally wounded a Ukrainian citizen, Serhiy Kudria who, along with his pregnant wife, was returning to Ukraine by car from the Czech Republic. The incident was widely publicized in Ukraine and Poland.

Right from the outset the case was taken under the personal supervision of the Commissioner, because the police’s actions that caused the young man’s death were extraordinary. The incident immediately called for an all-round and impartial investigation and the gravest responsibility, once the guilt of the police was proved.

Proceeding from a bilateral agreement on cooperation, the Ukrainian Commissioner addressed on February 2 the Commissioner for Civil Rights Protection of the Republic of Poland, Andrjei Zoll, with a request that the investigatory agencies within his jurisdiction thoroughly scrutinize the circumstances of Mr.Kudria’s death. The Commissioner also requested the reception of a special representative of the Ukrainian Ministry of Foreign Affairs, Olexandr Mishchenko, who was dispatched to Poland at that time.

The Commissioner for Civil Rights Protection immediately demanded from the county public prosecutor of Lublin investigating the case to provide constant information about the progress of the case and requested the State Police Authority to forward exhaustive information about all the actions of the Ukrainian citizen on the territory of Poland throughout the past two years.

Subsequently, the Commissioner for Civil Rights Protection kept the Commissioner regularly informed about the progress of pretrial investigations, such as the results of ballisticians’ examination, investigative experiments, examination of the accused and witnesses, and the like.

Concurrently, the mother of the deceased, Yevdokia Kudria, constantly communicated relevant information to the Commissioner. The latter met with the widow and brother of the deceased and assisted in providing proper medical attention to the newborn child at the Institute of Cardiovascular Surgery under the Mykola Amosov Academy of Medical Sciences.

As far as this specific case was concerned, the Commissioner was closely cooperating with the Ministry of Foreign Affairs and the Ukrainian Embassy in Poland, which expended a lot of effort to clarify this matter. Right after the tragedy a note of protest was forwarded to the Polish party, funds were allocated to pay for the services of a Polish lawyer, and material assistance was granted to the mother.

The last court hearing is scheduled for April 8, 2003, when the final verdict will be announced. This case is still under the supervision of the Commissioner.

Right to a fair trial. The observance of a reasonable duration of pretrial investigation and judicial review poses a problem for a number of countries that lack an adequately operating law enforcement and judicial system. This is a direct violation of the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

This problem is also typical of the former Soviet republics, the countries of Central Europe, some Western European nations, as well as Third World countries.

In 2000 and early 2001, the Commissioner received petitions from the mothers of Ukrainian citizens S.Mishuk and N.Holub who in June 1999 were detained on the territory of Slovakia on charges of plunder. The petitioners complained against the long detention in custody of their sons and undue delay in pretrial investigation and judicial review.

The Commissioner addressed the Ukrainian Embassy in Slovakia with a request to look into the compliance with the rights of the accused during the judicial review. In response, the Ukrainian Consul-General in Slovakia met with the Attorney General and Minister of Justice of Slovakia to raise the question of the undue delay in the judicial review of this case.

As the Commissioner for Human Rights was informed by the Ukrainian Embassy in Slovakia, such violations of Ukrainian citizens’ rights in that country are galore, and although the embassy has taken a series of measures to have the rights restored, there is no definite improvement of the situation.

The Commissioner also received complaints against undue delay in pretrial investigation and judicial review in Germany and Moldova by the wife of S.Halak and mother of A.Shevchuk respectively.

According to the information of the Ukrainian Embassy in Hungary, pretrial investigation of criminal cases in this country is conducted at a slow pace as well. As of the first six months of 2002, eight out of 39 Ukrainian citizens were held in custody since 2000 and two since 1999.

Our countrymen have to grapple with similar problems in the Hellenic Republic. This is true, for example, in the case of six Ukrainian seamen of the MS Funda, who in 2000 were convicted to ten years in prison and fined US $12,000 each (on charges of smuggling a group of illegal migrants into Greece).

In response to the appeal by the seamen and MP Yuri Kruk, the Commissioner for Human Rights initiated an investigation. By instructions of the Commissioner a representative of the Commissioner’s Secretariat, along with a Ukrainian lawyer, flew to Athens where they held talks with the Ombudsman of Greece, Nikiforos Diamanturos, met with the Greek counsel who handled the case at the Supreme Court, and together with the Ukrainian consular officials visited the convicted seamen in the prison at Patras.

After the joint intervention, the convicts acquired employment and were provided with better conditions of custody.

Because of the long delay in the consideration of the seamen’s appeal by the Supreme Court of Greece, the Commissioner for Human Rights addressed the Minister of Justice of Greece through diplomatic channels to have the appeal considered more quickly. This case is still under the supervision of the Commissioner.

Within the context of ensuring the Ukrainian citizens’ rights to fair trial and impartial court proceedings, the participation of consular officials in court hearings gains great importance. Judging from practice, their presence frequently produces a positive outcome.

As the Ukrainian Embassy in Poland informed, employees of its consular department took part in 42 court sessions in the period from 2000 to 2001 and the first six months of 2002, after which the convicted and accused Ukrainian citizens were released from prisons and right in the court room.

Such a practice is attended by objective difficulties, because Ukrainian diplomatic missions and consular posts are understaffed. Of the diplomatic missions that responded to the Commissioner’s inquiry, almost one-third emphasized the need to enlarge the staffs of their consular services.

This is especially true for the countries that have a lot of Ukrainian migrant workers. When two officers are on the staff of a consular section, they physically cannot take part in a court hearing hundreds of kilometers away from the diplomatic mission or visit the detainees as required by the Consular Statute of Ukraine. For instance, in the Czech Republic in 2002 there were only three consular officers to 515 of our imprisoned countrymen, while in Spain just two diplomats doubled as consular officers per 1,169 sentenced Ukrainians.

In order to make more effective the defense of the rights of Ukrainian citizens abroad, the Commissioner deems it necessary to enhance the personnel of Ukrainian consular posts, especially in the countries with the largest number of Ukrainian migrant workers, such as Spain, Italy, Poland, Turkey, Portugal, Hungary and the Czech Republic where quite a few of our countrymen are held in custody. It is also advisable to make more frequent the practice of consular officers participating in court hearings, especially in cases where there is a reason to suspect prejudice of the investigating and judicial authorities of the host country against Ukrainians who rights might be infringed.

CASES OF UKRAINIAN CITIZENS SENTENCED TO DEATH ABROAD

Since a large number of Ukrainian citizens are abroad, they occasionally commit offenses, including serious crimes, for which severe punishment is meted out in the host countries.

Lately, Ukraine has had to deal with cases of Ukrainian citizens sentenced to death in some countries that had not ratified Optional Protocol No.2 to the UN International Covenant on Civil and Political Rights and Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Two Ukrain­ian citizens were sentenced to death abroad in the period from 2000 to 2002.

In the summer of 2001, Ukrainian citizen V.Mamontova, 30, was condemned to death in the Kingdom of Thailand on charges of keeping drugs. From the moment of her apprehension she denied any involvement in the committed crime, but the court adjudged the death penalty that had to be executed within one month.

Given the abolition of the death penalty in Ukraine in December 1999, the verdict of the Thai court caused a passionate outcry in the Ukrainian press and society as a whole.

This news reached the Commissioner for Human Rights in South Africa where she was on the Ukrainian delegation taking part in the UN World Conference Against Racism, Racial Discrimination and Xenophobia.

That same day the Commissioner had a telephone conversation with the Ambassador Extraordinary and Plenipotentiary to the Socialist Republic of Vietnam, Rostyslav Bilodid, who was assigned by the Ministry of Foreign Affairs of Ukraine to supervise this case, then she met with the advisor to the UN High Commissioner for Human Rights, Brian Burdekin, and held negotiations with the leader of the Thai delegation at the World Conference, Ruengdeiom Mahafsaradonom, who represented the Kingdom of Thailand in the United Nations.

Completely supporting the requirement to severe punishment of drug offenders, the Commissioner expressed the stand that the citizen of a country that had abolished capital punishment could not be deprived of life by the laws of another country.

The Ministry of Foreign Affairs and the Ukrainian Embassy in Vietnam expended a lot of effort to settle the matter by initiating an appeal of the Secretary General of the Council of Europe, Walter Schwimmer, to the government of Thailand, while the Minister of Foreign Affairs of Ukraine, Anatoliy Zlenko, held talks with his Thai counterpart. Apart from these measures, Ukrainian diplomats assisted in enlisting quality legal defense for the accused, repeatedly visited her in the prison, and carried on negotiations with competent agencies of Thailand.

The efforts to mitigate the punishment were far from easy and took a long time to bring to a positive outcome. At last in early January 2003, the Court of Appeals of Thailand ruled to commute the death penalty of V.Mamontova to imprisonment of 33 years and four months.

On February 9, 2002, the criminal court of the first instance in Dubai (United Arab Emirates) adjudged guilty the Ukrainian citizen Andriy Svyryd, 28, and his Russian accomplice in the murder of a jewelry store proprietor and condemned them to death. An appeal against this verdict was lodged with the UAE Court of Appeals. No final judgment has been delivered in this case to date.

TRANSFER OF UKRAINIAN CITIZENS SENTENCED TO IMPRISONMENT
BY FOREIGN COURTS TO SERVE OUT THEIR SENTENCES IN UKRAINE

While held in custody in the penitentiary facilities of other countries, Ukrainian citizens are in most cases deprived of the opportunity to meet with their families and close relatives, receive any essential items they might need during custody, and in any other way communicate with their homeland. The best way of dealing with this problem would be to transfer them to Ukraine to serve out their sentences.

Legal relations in this area are governed by multilateral conventions, to which Ukraine is a party, as well as by corresponding bilateral agreements. The most comprehensive legal instrument is the Convention on the Transfer of Sentenced Persons signed in 1983 within the framework of the Council of Europe. The Convention came into force in 40 European countries, Ukraine included (from January 1, 1996), as well as in 10 other countries.

In effect to date are bilateral agreements on the transfer of sentenced persons which Ukraine signed with Georgia, Armenia, Azerbaijan, the People’s Republic of China, Uzbekistan, Kazakhstan, and Finland.

According to the information of the Ministry of Justice and the Office of the Attorney General of Ukraine, 24 sentenced citizens were transferred in 2000 from other countries to serve out their sentences in Ukraine (seven from Kazakhstan, four from the Czech Republic, three from Azerbaijan, two from Hungary, two from Moldova, and one each from Slovakia, Poland, the UK and France), 13 citizens were transferred in 2001 (from Kazakhstan, the US, Uzbekistan and the Czech Republic), and 21 in the first six months of 2002 (five from Poland, five from Kazakhstan, three from Russia, three from the Czech Republic, one from Lithuania, and two from Azerbaijan).

But the most troublesome and, regrettably, not yet regularized problem is the transfer of sentenced citizens by Russia, Belarus and Moldova, because, first, Russia and Belarus are not parties to the Convention on the Transfer of Sentenced Persons, although Moldova acceded to the Convention but has not ratified it, and second, there are no corresponding bilateral treaties between Ukraine and these countries. This causes a lot of additional problems, because these countries have the largest number of sentenced Ukrainian citizens. Also, since Ukraine has common borders with Russia, Belarus and Moldova, the transfer of sentenced persons does not present any special difficulties or entail extra costs for transportation either overland or by air.

The Attorney General of Ukraine addressed his counterpart in Russia with the proposal to conclude a bilateral agreement and forwarded its draft to the Russian party. But the issue remains unresolved to this day.

To tackle this predicament somehow, the Attorney General, on the instruction of the Ukrainian Parliament, enters into negotiations with the competent bodies of these countries (as an exception). But this does not deal with the problem properly. According to the information of the Attorney General’s Office, only three Ukrainian citizens were transferred from Russia to serve out their sentences in Ukraine, while by the end of the first six months of 2002 there were about 240 of our countrymen servicing sentences in Russia.

In the opinion of the Commissioner for Human Rights, the conclusion of appropriate bilateral agreements, specifically with Russia, Belarus and Mol­dova, would dispose of the problematic issues in this area.

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