How to resist State terror

Each of us can become a victim of the state and in today’s Ukraine nobody can guarantee that his or her rights will not be violated. However the situation is not hopeless and there are mechanisms for defending a person the Head of the Ukrainian Helsinki Human Rights Union, Yevhen Zakharov says. At a seminar in Lviv he explained how people can counter infringements of their rights by the authorities.

He recounted the story of a woman remanded in custody in her fifth month of pregnancy in the Kharkiv SIZO [pre-trial detention centre]. She was put in a cell with 8 beds in which there were 30 women. In her ninth month she was moved to a cell where there were three women. In the maternity ward she was handcuffed to the bed. After she pleaded with them they did remove them during her seven-hour labour. Nobody helped her in the maternity ward. Three days after the birth, she was returned, together with her baby son, to the SIZO.

A district paediatrician came once to examine her son, after that there were no more examinations. The food situation was very bad and goodness knows how she could have fed the newborn baby if it hadn’t been for parcels from her mother. In the courtroom they were both held in a cage.

Fortunately they were seen in court by a Kharkiv Human Rights Group lawyer who intervened. The baby was then three months old.

KHPG lawyers sent an application to the European Court of Human Rights to apply Rule 39 of the Court’s Regulations ordering urgent measures to ensure proper conditions for the baby and medical care. The Court asked for additional information, including from the government, and it was only on the 43rd day after the application was submitted that the Court applied Rule 39 and called on the Ukrainian government to provide proper conditions for mother and child; medical supervision and care.

The baby was examined by various doctors and found to have a heart valve condition requiring further examination, as well as allergic dermatitis. The mother has now been released on a signed undertaking not to leave the city.

Zakharov says that there are around 7-8 young mothers in the Kharkiv SIZO every month. They may be in other SIZO as well, equally unfitted for them. There are no normative acts regulating the situation.

On the other hand, he says, the case shows that you can fight and get a positive result.

– Having worked now for many years, we’ve reached the conclusion that when a person whose rights are violated by the state has a legal position which you can defend them on the basis of it, you need to always do so and to carry this through to the end, going through all the stages envisaged by legal procedure. And if this legal position is sufficiently strong, in the end you’ll always win. The experience which our organization has amassed has convinced me of that. Many will say that this is an idealistic view, that nothing can be achieved, however I nonetheless believe that that’s not true. I can recount hundreds of different stories which happened to people we helped or whom our colleagues from other human rights organizations helped.

Why does the law nonetheless prevail? It’s because Ukraine is within the international system of human rights protection. Ukraine is a member of the Council of Europe and quite a number of commitments follow from that. You can therefore lodge an application with the European Court of Human Rights about violations of the European Convention on Human Rights and win. Lawyers from our organization have in six years won over 70 such cases. In the case of the pregnant woman there was success through the application of Rule 39 of the European Court Regulations. That means that if a person whose life or health is threatened, the Court, having studied the evidence of such danger can issue a ruling demanding urgent measures and force the country to take them.

We have had several dozen such cases. The first group of these cases was linked to extradition when, for example, a prisoner could face torture in their own country. The second group is connected specifically with state of health when a person in prison needs proper medical assistance and such assistance cannot be provided in the medical units of the prison institutions or SIZO. Therefore a person has to be moved to a civilian hospital. And if the European Court gets evidence that this is indeed the case, then it issues a ruling and the Ukrainian government always implements such rulings. Even with regard to Yulia Tymoshenko – admittedly, with a delay of two weeks, but it did still implement it. In fact that delay was probably not connected with the government but with Yulia Volodymyrivna who didn’t want to go to the hospital that was proposed.

There are very few cases where applications for Rule 39 are turned down – two or three in all. That was in cases when we couldn’t provide proof which could convince the European Court.

Thus the situation is not hopeless with respect to specific human rights violations. At first you always need to carry out a legal analysis in order to understand which actions are needed and to consistently carry these actions out.

There is often a problem in that the people who have suffered don’t always want to get involved in that. For example, victims of torture. When they’ve got out after being tortured by the police, they’re frightened and don’t want to make any complaints so that they’re not hassled any more. There are more such cases than cases where somebody wants to receive satisfaction. It’s obvious that you can only help those who want to help themselves.

There are still too few human rights workers

The Kharkiv Human Rights Group in fact works throughout Ukraine although it obviously can’t cover the whole colossal range of human rights violations in the country. Our group is already 20 years old. We set ourselves the task to find colleagues throughout the country, to hold training courses, organizations such groups and work together. In 1991 there were no such organizations at all, and all of those people who were involved then in human rights defence with rare exceptions went into politics. Now there are around 250 such organizations. This on the one hand sounds a lot, on the other – it’s few since not all of them are sufficiently strong and can be independent. Of those there are around 25-30 for the whole country. And they, of course, do not cover the whole range of violations.

I therefore don’t see any other possibility but to increase the number of such organizations, train lawyers, including defence lawyers, so that there are more and more professionals with human rights-oriented thinking and who will defend their clients from a human rights position.

I understand very well that this is undoubtedly little. It’s not possible to only defend specific people in specific cases. These cases arise because there are failings in legislation, the justice system doesn’t work and the system of criminal justice in general is absolutely wrong here. All that does indeed need to be changed and human rights organizations must take an active part in that.

In addition, human rights workers should disseminate information. These can be some kind of guides for people in case, for example, they’re stopped by the police or searched. These would have their audience since people need to understand what they should do with a state if it violates their rights.

Everything changed in 2010

In fact human rights protection is the same politics. In general any civic activity in a post-totalitarian society is political in the broad sense of this work, unless we understand politics only in the narrow sense – like activities aimed at coming to and using power. It is human rights organizations that should pose the question about morality and the government’s legitimacy. In our case, unfortunately, about immorality and illegitimacy. It is they who should remind such governments who is in charge of the home and what role they should carry out.

When we talk about human rights defence, then we are talking about defence from the state when the latter violates their rights. That means that it always happens post-factum, after something has happened. I talk of rights assault – there need to be preventive measures in order to prevent human rights violations by the State when, for example, they want to pass this or that law.

Up till 2010 virtually everything worked. I don’t recall a single occasion when we didn’t success in stopping some kind of idiocy from parliament or the President’s Administration. Many laws were vetoed and rewritten.

Since 2010 the situation has changed. We are now heeded little although I must say that sometimes they do heed us, but in general they don’t. We are not yet strong enough to force them to pay heed to our views. And there are presently much more serious authoritarian tendencies, stronger discipline then under the Orange regime. If members of the present government are given an order, then no arguments work. They can agree with you in the corridor, but they will still vote as they’re told. We need therefore to think again about how to build our joint actions in such a way as to better influence this regime.

Why Ukraine?

In my opinion Ukraine’s main problem is a lack of people capable of working, capable of understanding and creating new things. There is a lack of educated people. I person have the greatest criticism of the Ukrainian authorities that over 20 years of independence they’ve left people poor and uneducated. If I could seriously influence decision making, I would try to get considerably more money spent on education so that the attitude to teachers was completely different than it is. So that their children learned English, knew computers well, etc.

The question “Why Ukraine?” {the title of a series of seminars; the interrogative pronoun is more like “what for?” – translator) arises because the country is really still very young and still lacks awareness what it is there fore, what unites people. I have a certain idealistic perception of this. What is the Ukrainian national idea but the same question as “Why Ukraine?” This is because I devoted some time to the history of political repression in the USSR. We know that the largest uprisings in the GULAG – Vorkuta, Kingiri, Norilsk were organized specifically by Ukrainians. Those people knew that this was certain death and yet for some reason they did it. After I read all of that I understood that the Ukrainian national idea is really the idea of freedom. And if we speak about human rights defenders in the 1960s – 1080s, it was that same idea of freedom that inspired them to do what they did.

Incidentally that was the same when on 21 November 2004 people went out onto Maidan, They didn’t know what awaited them, and there were prayers in Church for their lives. That is, this is a sense of dignity, of it being impossible to tolerate it when they’re so flagrantly conned – those are the same motives as before.

If we connect all of that together, I think that Ukraine will affirm itself, that this nation has a future. We must just always remember that you should defend your dignity under all circumstances , whatever it costs. However I understand very well that these words are a bit pathos-filled and that they don’t suit everybody, that each person has to do what their heart dictates. Nonetheless I see that there are many such people in Ukraine. The problem is that they don’t know how to build political life together. Yet what can be done, they need to learn.

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