Libmonster ID: KZ-1588

On April 14, five years elapsed since the first Verkhovna Rada Commissioner for Human Rights (on April 14, 1998) was assigned. On the eve of this anniversary a round table meeting was held at the Ukrainian Ombudsman's office, among participants being Klas Eklund, the Ombudsman of the Kingdom of Sweden, Oke Peterson, Ambassador of Sweden to Ukraine, judges of the Supreme and Constitutional Courts of Ukraine, people's deputies of Ukraine, representatives of mass media and public organizations.

Nina Karpachova, the Verkhovna Rada Commissioner for Human Rights opened and conducted the meeting.

Nina Karpachova: Our today's meeting is attended by an outstanding person, Sweden's Parliamentary Ombudsman Klas Eklund. I would like to welcome him on behalf of all the participants. The topic of our discussion is Interaction of Ombudsman with legal authorities and mass media for protection of human rights: Ukraine's and Sweden's experience and problems. It should be noted that last year, at the invitation of Sweden's government and with the help of Sweden's Embassy to Ukraine and the Swedish Institute, a delegation of the Ukrainian Ombudsman's officers visited the Swedish Ombudsmen's Office. I hope, my colleague will extensively describe the Swedish concept of ombudsman.

During three days we conducted 14 meetings and became acquainted with a unique experience of Sweden in the sphere of human rights protection, democracy, and supremacy of law in the public life. The Swedish concept of ombudsman is pretty unique insofar as Sweden was the first country ever to introduce an institution of ombudsman in contrast to the absolute monarchic power. Currently, there are 9 ombudsmen in various spheres, in Sweden. Four of them are working in the Parliament, Klas Eklund, who is present at this meeting, being the head of ombudsmen's team.

There are no two identical ombudsman concepts in the world. However, all the concepts have something in common, the main feature being the protection and legal support of human rights and freedoms. It envisages a supervision over state authorities, primarily, over bureaucrats at all levels, from the bottom to the top, investigation and adjustment of claims, personal claims of residents, nonresidents and individuals without citizenship applied to the ombudsman. It should be noted that during five years since the establishment of Ukrainian ombudsman institution about 270 thousand persons applied to it. Every year we receive more than 20 thousand applications. We are also working and receiving people in regions.

Taking into account the topic of our today's meeting it should be pointed out that our cooperation with legal and court institutions, including with the Supreme and Constitutional Courts of Ukraine, as well as courts of general jurisdiction, is complicated with many difficulties. I suppose, my Sweden's colleague will tell us about the Swedish experience. Naturally, there exist some distinctions in the sphere of

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interaction between ombudsman and legal authorities in Sweden and in Ukraine. However, our countries have much in common in this field, i. e. a wide competence of both ombudsmen in the human rights protection. My colleague is entitled even to impose penalties. Ukrainian ombudsman does not have such a right and tries to apply other methods and instruments for effecting the human consciousness. However, sometimes more strict measures should be taken. I believe, we should be entitled to give reports at the Parliament on our own initiative, in addition to a scheduled annual report. In the near future the Ukrainian ombudsman will give a series of reports at the Verkhovna Rada, including a report on keeping and protecting rights of Ukrainian passport holders outside Ukraine based on the results of unique monitoring investigation carried out in cooperation with other ministries, departments, and regions of Ukraine. Another report will summarize our joint monitoring research performed in cooperation with the OSCE Higher Commissioner's office on national minorities. It is devoted to the protection of national minorities' rights in Ukraine. We also will present a special report Right on Deserved Interment and Commemoration of Perished People in Ukraine.

Our round table concerns also interaction with the mass media, their representatives being invited to take part in. Recently, the Ukrainian ombudsman appeared at the session of the Verkhovna Rada and spoke for supporting the mass media. On March 24, I will appear at the Cherkasy Court of Appeal to protect rights of the Kirovohrad mass media against the claim of the Kirovohrad judge Yaroshenko worth UAH 5m. I. e. the Kirovohrad bureaucrats claim from the local mass media to pay $1m. I believe, we must put a stop to such claims.

Dear friends, as you know, the Law of Ukraine On the Verkhovna Rada Commissioner for Human Rights establishes an ombudsman's status, his/her rights, competence, authority and duties. Pursuant to the Law, the ombudsman must be a politically neutral figure. Another specific feature of our concept lies in the fact that the Ukrainian ombudsman is entitled to act in compliance with his/her good conscience and justice.

Oke Peterson, Ambassador Extraordinary and Plenipotentiary of the Kingdom of Sweden to Ukraine: Let me to welcome all participants of the round table. I would like to greet the Ukrainian ombudsman Nina Karpachova, the Swedish ombudsman Klas Eklund, respected people's deputies and representatives of the Ukraine's mass media. You are very close to my heart and my country, inasmuch as Sweden is striving for cooperation and partnership with Ukraine. We would like to share our great experience in the development of society. There are many things which at the first sight will be strange, incomprehensible, and unfitting for the Ukrainian society, but we should share our experience and discuss all the problems, including the creation of favorable conditions for the development of Ukraine. As Mrs. Karpachova put it, she derived much useful information from her contacts with the Sweden colleagues. It should be noted that, as a result of this exchange, the parties have developed many approaches to each other and realized that this is the way we must keep in the future. Mrs. Karpachova told about operation of the ombudsman's service in Ukraine. What does it mean for us, the foreigners? Naturally, ombudsman service is a mirror of social life of country, its face, an indicator of democratization, a guarantee of the world confidence in. This function is associated not only with an ombudsman itself, but with ombudsman as an institution. In Ukraine, it is headed by Nina Karpachova. We will support this institution for creating stable far-reaching prospects for our cooperation.

In the epoch of drastic changes in the political, economic and social spheres the society has need for an institution enjoying the trust of the whole nation. We would like to share our experience with Ukraine since the development of such institutions is a very important

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component of any democratic society. For example, we invited Mr. Riabets, the Head of the Election Committee of Ukraine, to visit Sweden, where he familiarized himself with the Swedish experience in this sphere. I hope, it will be useful for him.

As regards functions of Swedish ombudsman. Mr. Eklund will give you a detailed description of them. The ombudsman's duties concern also the Ambassador of Sweden to Ukraine, inasmuch as Swedes related to the state authorities in Ukraine often appeal to my Embassy inquiring about some information. It means, I am open for criticizing me by Sweden's ombudsman. If any Sweden's passport holder makes a complaint about me, I receive a letter from ombudsman's office and have to justify my behavior.

Thus, it plays a very important and efficient role. We should keep it in our mind when working with various issues and letters in our Embassy. I hope for the development of our cooperation and fruitful discussions on other issues.

Klas Eklund, the Parliamentary ombudsman of Sweden: In my report, I would like to focus you attention on an important aspect of ombudsman's work, i. e. its interaction and relationships with judicial system and mass media. Courts play a very important role in the state management based on predominance of law, their main tasks being to guarantee the constitutional human rights, to protect them and to settle conflicts without any prejudice, in compliance with the applicable law. For the purpose of guaranteeing fair legal proceedings a special procedure was established in compliance with the applicable rules. Ombudsman's role is quite similar to court's one, an ombudsman being an independent institution whose main task is to protect human rights. However, there exist some essential differences. Ombudsman's declarations are not legally binding and procedure used by him is quite less formal, but quicker than court procedures. People may appeal to ombudsman without lawyer's help, and ombudsman investigates cases free of charge. Relations between courts and ombudsmen in various countries are very diversified depending on applicable administrative regulations. In many countries, ombudsmen perform court functions as regards investigation of administrative cases. Because of a simpler procedure people more often appeal to ombudsman than to the court despite the former not being entitled to reject or cancel administrative decision.

In some countries, ombudsman is entitled to start legal proceedings, for example, at the constitutional court. Some ombudsmen are entitled to supervise, fully or partially, over court activities. In many countries ombudsmen have specific relations with other structures of law-enforcement system, especially with prosecutor's office and police. Some aspects of ombudsman's relations with judicial structures may be illustrated by Sweden's examples. It should be pointed out that our system is really pretty unique one, it cannot be copied and adapted to other country.

I would like to emphasize an importance of ombudsman's work for administrative courts of Sweden. The people can appeal against decisions of administrative court or administrative authorities as regards human rights and duties as to the state or municipal authorities by different ways, in majority cases, without a lawyer engaged. It will suffice to write an appeal and submit it. The administrative court may revise administrative decisions not only in the context of their compliance with the law, but also in the context of their fairness. It should be noted that the Swedish administrative court is entitled to make administrative decisions by legal proceedings. As a result, the ombudsman has no need for investigating materials and competing with courts for revision of administrative decisions. Instead of that the ombudsman focuses his attention towards ways the authorities implement procedures and regulations of administrative legislation.

The Swedish parliamentary ombudsman is entitled to supervise over courts' activities. This is a pretty rear authority of ombudsman. This

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control does not either affect in any way the independence of courts in Sweden or conflict with a principle of law predominance. Judges, like all the people, act in compliance with the law, however, like other people, sometimes, they can be mistaken and wrong. However, such a control is necessary to prevent staining a good reputation of judicial system when any judge fails to duly perform his/her duties.

The system which entitles the ombudsman to supervise over courts' activities has a big edge on other existing systems where this control is exercised by ministry of justice. Firstly, it is more convenient for people, for example, for a witness who thinks the judge treats him/her wrong, to appeal not to the court, but to ombudsman Secondly, the ombudsman may start investigation even in case of insignificant mistake connected with disciplinary measures. Thirdly, inasmuch as the ombudsman may investigate only ordinary cases concerning compliance with judicial procedures and regulations, he does not interfere in the competence of the Supreme Court which examines appeals. Insofar as the ombudsman, like a judge, is an independent and unbiased figure there are no reasons for suspecting that ombudsman's interference in court activities may affect in any way the predominance of law. The Swedish ombudsman's supervision over courts envisages that independent judges must act in full compliance with the law. The ombudsman investigates cases concerning not correctness of interpretation of evidences or provisions of law by the court, but the cases when a court decision does not comply with the applicable legislation. For example, if a defendant is sentenced to a punishment which exceeds the maximum one. The ombudsman's deeds at the court depend on court procedures and cases investigated. He also examines cases of incorrect deeds or behavior of judges and criticizes those who fail to comply with the code of legal procedure.

Often ombudsmen protect independence of judges. They do not examine appeals against court before submitting the case to the court. The ombudsman acts within his constitutional authority with respect to all governmental institutions. As a rule, he acts in compliance with the Constitution of Sweden. All the state authorities shall provide the ombudsman with any necessary information and assist him in his work.

Ombudsman's work is mainly connected with examination of appeals and on-sight supervision over court activities. When inspecting the court he reveals dragged cases and examines whether the court performs its duties in due manner and whether its decisions are correctly formulated and complying with the applicable law. The ombudsman acts in compliance with the code of legal procedure.

Another important aspect of relations between ombudsman and courts is the ombudsman's authority to appear at the court as a prosecutor. In this role (as an extraordinary prosecutor) the ombudsman may initiate a case against whatever person. As a rule, the Swedish judges act in compliance with the Criminal Code and bear responsibility for their deeds. When establishing the ombudsman's office the ombudsman was charged with performing prosecutor's duties in cases brought against state officials. If he has reasons for suspecting a state official in crime or failure to meet the applicable legislation he initiates the case and acts as a prosecutor. In this case the legal proceedings shall be carried out in accordance with the code of legal procedure. It means the state authorities should provide the ombudsman with all necessary information for investigating the case.

Currently, Swedish ombudsmen seldom realize their right to act as a prosecutor since mistakes made by courts are not so serious to initiate a criminal case. Usually, it will suffice to point out mistakes and propose new methods of work. It should be noted that ombudsman's role as a prosecutor is of paramount importance for the public life of the state. The ombudsman shares his experience with courts, give his recommendations, but in the most difficult cases it

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is just the court that has a final word.

Ombudsman's right to act as a party at court proceedings is a pretty important link connecting the ombudsman with judicial system. Prosecutor's function of ombudsman does not overlap functions of regular system, state prosecutors being entitled to prosecute state officials for committing any crime, including abuse of power. The ombudsman is the only state prosecutor to be entitled to bring a case against state judges and appeal against judges of the Supreme Court. He is entitled also to bring a criminal case against bureaucrats or to take over the case brought by state prosecutor. However, ombudsmen seldom exercise this rights for preventing their interference in activities of state authorities. It should be pointed out that if the ombudsman investigates a case or appeals at the court against state officials, a state prosecutor should act as his representative. When supervising over state prosecutors' activities the ombudsman should be guided by the same rules and regulations that he uses when controlling court activities. It means he investigates only individual cases brought by prosecutor for making decision on criminal prosecution. Usually, he examines how prosecutors exercise their authorities when arresting people or searching of their houses.

I would like to mention about relations between the ombudsman and police. In addition to police's involvement in criminal proceedings brought by the ombudsman there are some other aspects of cooperation between them. The ombudsman supervises over police's enforcement measures and keeping rights of arrested and imprisoned people.

As regards relations between ombudsman and mass media. The mass media play a very important role in the Swedish ombudsmen's work covering their activities and criticism of state authorities. All ombudsmen's reports and important decisions, as well as appeals and complaints they investigate and adjust are published in mass media. In the ombudsman's office there is a special room for mass media representatives where the press service contacts with journalists. Sometimes, I read about appeals submitted to the ombudsman in periodicals before looking at them through my eyes.

All ombudsman's decisions of public interest are published on his web site in Internet. Mass media's interest in ombudsmen's activities help us to raise their efficiency. It should be noted also that information of mass media as regards shortcomings in activities of governmental institutions may be a ground for investigation of their activities by ombudsmen.

My annual report before the Parliament is sent to all the state authorities whose activities are supervised by ombudsmen, as well as to the mass media representatives and scholars. It promotes a raising efficiency of activities of courts and administrative authorities.

The Swedish ombudsman's office persistently works at improving interpretation of criminal and civil codes and implementing ethic principles in courts and state institutions. The ombudsman's activities promote an increasing public confidence in the judicial system of Sweden. Finally, I would like to express my pleasure from participation in this round table. I hope, I will hear many interesting things from your experience in this sphere.

N. KARPACHOVA: I would like to thank Mr. Eklund for his interesting and substantial report. It is a very important fact that some ombudsmen, including the Swedish and Finn, are entitled to perform prosecutors functions at court proceedings. This is a specific feature of the Scandinavian countries which enhances the role of ombudsman. Among the post-Soviet and post-socialist countries only the Poland's ombudsman has a similar authority. Ukraine's ombudsman has very specific relations with courts. According to the latest changes caused by legal and judicial reforms, including the Law of Ukraine On the Judicial System the ombudsman's representatives are entitled to be members of judge qualification commissions. As of today,

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seven commissions have been established in Ukraine. The ombudsman's representatives work in this commissions twice per month. The Commissioner for Human Rights is a member of the Supreme judge qualification commission of the Supreme Court of Ukraine. I hope this cooperation will progress despite a lack of understanding in some regions.

Recently judges of the Donetsk Court of Appeal submitted to the Commissioner for Human Rights an appeal signed by 51 persons. The matter is the fact that they have not received their salaries for the period from 1998 till 2002 in full, despite four decisions of the Pechersk court of the city of Kyiv and an act of execution sent to the Treasury of Ukraine. Finally, these judges appealed to the European Court for Human Rights. In the speech devoted to the 80th anniversary of the Supreme Court of Ukraine the Commissioner tried to draw attention of the audience towards this problem. Some Cabinet officers misunderstood me and even wanted to bring a suit against me for a false accusation (since all the courts were fully financed). Yesterday, I had a meeting with the Minister of Justice. Earlier I met with the Prime-Minister of Ukraine Viktor Yanukovych and he supported me. This problem should be solved complexly, inasmuch as it concerns not only judges of the Donetsk Court of Appeal, but also many others, from miners to people employed in the judicial system of Ukraine. It is very difficult for my Swedish colleagues to understand this problem. However, unfortunately, in this transition period, we have a problem of huge arrears in salaries. I discussed this problem at all-Ukrainian meetings of judges and told about experience of the Russian Federation: when the Russian judges did not receive their salaries Mr. Lebedev, the Head of the Supreme Court of the Russian Federation, demanded from the Prosecutor General to bring a criminal suit against the Minister of Finance of the Russian Federation. He said, otherwise he would have to do it himself, at the court. Since that time, the Russian Minister of Finance has been personally controlling the payment of salaries to judges. It does not mean, that I claim that Ukrainian judges must receive their money in due time at the expense of other people. I want all the people in Ukraine to get their wages and salaries in full and in due time. However, if the court as main guarantor of human rights, pursuant to the Constitution of Ukraine, is unable to protect its own rights then all our hopes of enhancing protection of human rights are vain, no matter how efficient our cooperation with the Parliament, judges, NGOs or with the President of Ukraine may be. These global pressing problems should be solved.

Now, I would like to give the floor to Pavlo B. Yevhrafov, the honorable judge of the Constitutional Court who during three years worked as the First Deputy Head of the Constitutional Court of Ukraine.

Pavlo B. YEVGRAFOV: I intently listened to the report of Swedish parliamentary ombudsman and was surprised with his authority and functions. Naturally, having such rights and duties he can efficiently protect human rights and freedoms in Sweden. For my turn, as a member of the Constitutional Court of Ukraine, the main guarantor of human rights and freedoms pursuant to the Constitution of Ukraine and the Law of Ukraine On the Constitutional Court of Ukraine, I would like to draw your attention towards some problems which, seems to me, are the main issues in the sphere of human rights protection. Establishment of an institution of the Verkhovna Rada Commissioner for Human Rights and appointment of Mrs. Karpachova to this office played a key role in this field being the most democratic and closest to the people, as well as the most efficient organization in Ukraine.

What are the relations between the Constitutional Court of Ukraine and the Verkhovna Rada Commissioner? In Ukraine, the situation is quite different from that in Sweden. The Constitution of Ukraine, the Law of Ukraine On the Constitutional Court of Ukraine, the Law On the Verkhovna Rada Commissioner for Human Rights entitle the ombudsman to appeal to the Constitutional Court of Ukraine in case of violation of human and civil rights of Ukraine's

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passport holders or in case of noncompliance of some laws of Ukraine or their provisions with the Constitution of Ukraine. In many cases upon such appeals the Constitutional Court made decisions for the sake of common people thereby protecting their rights and freedoms, including a case on compliance of the law of Ukraine On Trade Unions with the Constitution of Ukraine brought upon a constitutional appeal of the Verkhovna Rada Commissioner for Human Rights, the so- called case of freedom of trade union foundation. Pursuant to the Constitutional Court's decision of October 18, 2000, citizens of Ukraine, employees of organizations and enterprises, are entitled to found trade union irrespective of their previous registration, as it is set forth by Article 136 of the Constitution of Ukraine. Another resonance decision upon appeal of the Verkhovna Rada Commissioner for Human Rights was adopted by the Constitutional Court on May 23, 2001, on compliance of Article 2481 of the Civil and Processing Code of Ukraine with the Constitution of Ukraine. Pursuant to this decision based on Articles 55 and 124 of Ukraine's Constitution, the Ukrainian people have a right to appeal against any deeds or decisions of state and administrative officials. Some aspects of this decision were intensively discussed and opposed by state authorities, especially, by law-enforcement bodies as regards appealing against resolution of investigator or prosecutor on bringing a criminal suit at pre-court proceedings. However, in its decision of February 16, the Constitutional Court of Ukraine when making a decision on compliance of Articles 234, 238 of the Criminal and Processing Code of Ukraine and Article 2481 of the CPC of Ukraine confirmed the right of Ukraine's citizens to appeal against resolutions of investigator or prosecutor on bringing a criminal suit at the stage of pre- court proceedings.

A case of paramount social importance was brought upon appeal of the Verkhovna Rada Commissioner for Human Rights as to compliance of the Law of Ukraine On State Guarantees of Households' Savings Refund with the Constitution of Ukraine. This case concerned interests of million Ukrainian people who deposited their funds with the State Savings Bank and lost them after the USSR collapse. Later, the Law On Guaranteeing of Savings Indexing was adopted, however, people did not receive back their money, except for those who reached the specified age and could obtain a small share of their savings. The Constitutional Court of Ukraine satisfied the Commissioner's claim thereby confirming that indexed savings must be refunded to their owners. This important decision showed a mutual understanding between the Constitutional Court and the Commissioner for Human Rights. Unfortunately, the European Court for Human Rights did not satisfy claims of Ukrainian people on this issue.

The Commissioner, in cooperation with the Constitutional Court of Ukraine, considered a case on legitimacy of death penalty. This problem was intensively discussed by politicians and statesmen, but they did not arrive at common decision. The Court determined the death penalty did not comply with the Constitution of Ukraine. This decision was a material step on Ukraine's path towards the world progressive legislative standards. However, it does not mean that we have a quite good situation in the sphere of human right protection, some pressing problems remaining unsolved.

Many provisions and acts of Ukraine's legislation, especially in the sphere of human rights protection, are country archaic and do not comply with the Constitution of Ukraine despite a hard work of Ukraine's Parliament on making new adequate laws in accordance with the Constitution and the world legislative standards. It should be noted that in other countries, like Germany, Armenia, Bulgaria and the Russian Federation, there exists an institution of constitutional appeal of citizens against laws and other legislative acts. What does it mean?

Ukrainian people may appeal to the Constitutional Court not only with the help of the Verkhovna Rada Commissioner for Human Rights, but also themselves. However, it is

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possible only in case of necessity in interpretation of the Constitution, when the applicant supposes that an uncertainty in the existing legal practice may result in violation of human or corporate rights and freedoms.

This is a very complicated procedure for the applicant because of necessity to confirm uncertainty in the legal practice which has resulted in violation of his/her rights. That is why the Constitutional Court has made only ten decisions on such cases. Karpachova's appeal pushed up us to seek for other approaches and as of today, the majority of the Constitutional Court members has believed that it is necessary to introduce such institution as constitutional appeal of citizens against laws and other legislative acts. Not only 450 people's deputies of Ukraine, but also the Verkhovna Rada Commissioner for Human Rights, the President of Ukraine, and Verkhovna Rada of the Republic of the Crimea, as well as the whole population of Ukraine should have this right, inasmuch as it is in line with the Constitution of Ukraine, where the human being is declared to be the highest social value and the state is obliged to ensure protection of human rights and freedoms. Unfortunately, none proposals have been put forward as to amending the Constitution of Ukraine as regards establishing this institution.

I know that many people's deputies support this proposal. I would like to emphasize again that such an institution is very necessary in Ukraine. It fully complies with the Constitution and principles of law supremacy in the democratic state.

I think the Verkhovna Rada Commissioner for Human Rights should have some more authorities when appealing to the Constitution Court of Ukraine in this case.

Pursuant to the Law On the Constitutional Court of Ukraine, if in the course of legal proceedings some doubts arise as to compliance of some criminal law or its provisions with the Constitution of Ukraine, then the case should be suspended and relevant court should appeal to the Supreme Court of Ukraine with request to appeal to the Constitutional Court for examining this issue. Such cases should be examined without delay. I would like to draw attention of the people's deputies of Ukraine towards the fact that when the Verkhovna Rada Commissioner for Human Rights appeals to the Court her applications should be considered immediately, since it is a matter of human rights and freedoms.

Finally, I would like to mention about the fact that upon Mrs. Karpachova's appeal the Constitutional Court of Ukraine has considered the case of residence registration. In the Soviet time, if a person was not registered by its residence he/she could not be employed, and could not be registered because of being unemployed. It was a sort of vicious circle. As of today, we have partially solved this problem. In accordance with the European pattern we cancelled a provision according to which the people could not be employed unless registered by their residence, thereby approaching to the democratic pattern.

I. LUBCHENKO, the Head of the National Union of Journalists of Ukraine: We are fruitfully cooperating with the Commissioner for Human Rights. It was very interesting to hear about Swedsh experience from Oke Peterson and Klas Eklund, the parliamentary ombudsman. However, while we are seating and discussing here, 8 courts of Ukraine are examining cases brought against the mass media, the total value of claims exceeding the state budget of Ukraine. I am upset not with a number of claims and its value, since the people should be entitled to protect their dignity at the court, but of the fact that our courts do not always comprehensively investigate cases, often acting with prejudice. Courts cannot withstand under the pressure of plaintiffs, since not common people, but authorities, state officials, bureaucrats and businessmen appeal to them against mass media considering whatever criticism to be an irremediable moral damage and claiming vast amounts of money.

For example, the regional court sentenced a regional newspaper to a penalty of UAH 10 thousand, upon appeal of local bureaucrat. It

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means that the periodical should be liquidated since having no money to pay the penalty. The oblast court examined the case and decided that the newspaper was wrong and had to pay 100 hryvnias as a penalty. Unfortunately, this is not the only case and we are under permanent pressure. Here, Mrs. Karpachova told about a judge who claims 5m hryvnias. I am upset not with the value of claim, but with the fact that the court froze accounts of TV company without a comprehensive investigation of the issue. It means that the company cannot pay for broadcasting time, pay salaries to the personnel, send correspondents on missions, i. e. cannot perform its professional activities. In the Luhansk case, the judge made his decision without investigating the matter of case. According his decision, the whole print run of 10 newspaper issues should be given to the plaintiff. When I told about this case to Mr. Maliarenko, the Head of the Supreme Court of Ukraine, he could not even comment this fact.

In 2001, upon our request the Plenum of the Supreme Court of Ukraine examined an existing practice of claims against mass media and gave relevant comments. Then our opponents calmed down. Currently, upon our repeated request the Court analyzed the previous year practice of claims. I hope it will give positive results, however, periodically they attack the mass media. I think judges and lawyers must make cardinal decisions to allow the mass media to perform their functions.

Finally, I would like to tell some words about recent developments which shook the journalist community. The Prosecutor General proposed to the Parliament to renew the Criminal Code's article on criminal prosecution of calumny. We know where it can lead to. I submitted to the people's deputies an application for rejection of this amendment since it threatens journalists' rights and freedom. Mrs. Karpachova herself dealt with the Yuri Mozola's case, when the SSU officers victimized him in prison. It was just the journalists who inform the society about this case. If this article were in effect they would be imprisoned for a long period and the people would never know about this tremendous fact.

Ye. OVCHYNNIKOV, a Judge of the Supreme Court of Ukraine: I would like to remind you of the fact that Ukraine is a country with old democratic traditions. Representatives of Ukraine, including outstanding scholars, Professors Nedbailo and Zabihailo headed the UN Committees for Human Rights during many years. Social and economic transformations in Ukraine resulted in the formation of new system of right protection. Today, the institutions which must protect human rights and freedoms are courts and the Verkhovna Rada Commissioner for Human Rights. When people apply to the Supreme Court they always tell that they make it upon Mrs. Karpachova's advice. The Verkhovna Rada Commissioner and her team make their best endeavors for protecting rights and freedoms of Ukraine's citizens. I would like to discuss two problems. Our experience shows that we must work at adjustment of our legislative basis since the Law On the Verkhovna Rada Commissioner for Human Rights is not enough for defining his/her role in the human right protection in full.

As to the criminal proceedings. Pursuant to the Criminal Proceeding Code, as amended (Article 4009), the Commissioner for Human Rights is entitled to apply for exclusive case reconsideration. My colleagues and me think the Commissioner's rights and authorities should be extended to imposing disciplinary penalties on judges for protraction of cases and violation of oath. I believe this rights should be granted to the Commissioner by both the Parliament and society.

The Commissioner's right to participate in plenary sessions of the Supreme Court of Ukraine should be specified more clearly. All the legislative acts on human rights and amendments to them should be elaborated and made by the Parliament with the ombudsman's opinion taken into account. The ombudsman and the Supreme Court received many complaints about unreasonable and unjust court decisions. However, the Commissioner's rights are limited. I think we should enhance and extend her rights and

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authorities and support her activities.

As regards the mass media. In my opinion, the mass media have to be more correct and accurate when criticizing. The Supreme Court is working at solving this pressing problem. In 1995, we adopted a decision on covering moral damages. Later, upon request of the Union of Journalists we revised and amended it. Currently, the Supreme Court, on initiative of the Union of Journalists and its reasonable appeal, are examining the practice of adjusting claims against the mass media. We will make our decision in this half-year. In this context, we are also examining a possibility of extending the ombudsman's authorities and studying the practice of implementing the European Convention for Human Rights and decisions of the European Court for Human Rights.

H. UDOVENKO, Head of Committee for Human Rights, National Minorities and National Relations of the Verkhovna Rada of Ukraine: I would like to say that Ambassador of Sweden to Ukraine does much in order that superiority of law should dominate in our country. He made his best to break through a blockade existing now around Ukraine. Our country was visited by Vice-Prime-Minister of Sweden, former Minister of Foreign Affairs (Sweden was at that time a presiding country in the European Union). And, today, we consider it an honor to receive in Ukraine a well- known Swedish ombudsman Mr. Eklund.

What can we say? Will Ukraine adopt experience of Sweden? It will take much time for us; however, we should accelerate implementation of Swedish experience. Today, thanks to the Embassy we received the Constitution of Sweden. According to the Ambassador's words, in 2009, Sweden will observe a 200 anniversary of Swedish Constitution. And within a 200-year period there were only some insignificant changes. Let's take our experience. We have not still adapted for the 1996 Constitution, however, everyone is itching to introduce changes. I am proud of how properly the Constitution's Human Rights Article is written.

And how is this experience adopted? According to Karpachova's words, her personnel receive twenty thousand appeals annually. These are only registered appeals and how much of them were not registered? The Verkhovna Rada's Committee receives nearly ten thousands claims. However, in contrast to Karpachova who has right to interfere in the solution of issues and assist in their settlement, our Committee may only make explanations, send the claim to a court, Office of Public Prosecutor or to Oblast State Administration and ask them, at least, to consider the claim. Therefore, today, it is very important for us to implement laws and the Constitution as regards the human rights. I consider also that during the years of independence we adopted two very important acts. The first is joining the European Convention on Human Rights which makes it possible for every citizen to apply to the court of Strasbourg. The second is establishing an Office headed by Karpachova. This is also a very important achievement. I support opinions expressed today as to Law of Ukraine On Verkhovna Rada Commissioner for Human Rights. I believe that it is necessary to make the relevant changes in the Law in order to strengthen this institution and the rights of Commissioner for Human Rights since for many people it is the only hope to solve their problems. And I personally often appeal to this institution when I need to solve a complicated issue, for instance, in case of tortures in cells. Ukraine joined the UN' Convention On Human Rights concerning prevention of torturing. We should observe its requirements. In reply to our application to Minister of Internal Affairs in which we inform him that his subordinates beat an arrested person to within an inch of his life he calls it a provocation. This Ministry has never agreed with such accusations to their address. Therefore, the institution of Commissioner for Human Rights should be strengthened. We spoke already with Mrs. Karpachova as to the necessity of introducing in every region of Ukraine of this institution's Commissioners. However, all these people should be appointed by Commissioner itself, and not by governors. It must be an independent institution. Many deputies know

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Mrs. Kovalevsky. Since 1987, she has been struggling for restoring her right to work. She has been already picketing the Administration during two years. A man with a large beard, Mr. Komernytsky, is picketing in Bankova St., as well. It is a housing problem and nobody can solve it. Today, our task is to secure observance of the Constitution and to live according to laws adopted by us. Otherwise, there will be disorder in our country. There will be a dictatorship. I would like to approve our cooperation. We send all our draft laws to the Office of Commissioner for Human Rights. Law On Citizenship of Ukraine, its new wording, meets all the European standards. Mrs. Karpachova sent some proposals which were approved by the deputies. The Verkhovna Rada approved some new laws: On Citizenship, On Immigration, On Refugees. Today, we are considering the Law On Shelter. All these drafts are always sent to the Office of Commissioner for Human Rights. Mrs. Karpachova and Mr. E. Pavlenko participate in the Committee's meetings. We cooperate and participate in many conferences relating to human rights which are held in Ukraine.

Today, we are working over a very pressing problem. I have already given a visa to this document and sent it for the Verkhovna Rada's consideration. It is the Law On Meetings. Now we call it draft law On Holding Meetings and Moves. During ten years we could not formulate this law. However, during this convocation we have finalized it. The Constitution of Ukraine grants the citizens of Ukraine to hold meetings. The only limitation is to have no fire-arms. Let's see how this law will be voted in the Verkhovna Rada. Every draft law undergoes examination in the Council of Europe. And now, all our draft laws meet the European standards. Today, Mr. Yevhrafov said that our current legislation is archaic. It is so with a great number of draft laws concerning the human rights protection. A problem of aboriginal population's status is also pending.

We have not adopted any laws concerning victims of political repression, their drafts being under consideration of the Committee. During some last years much attention has been given to cancellation of residence registration, issue of natural persons registration being under consideration.

Journalists should criticize laws despite possible suits against them. A large sphere of activities for such branch of power as journalists is to criticize breaking of law and arbitrariness of local administrations.

In conclusion, I would like to say that the experience of Sweden is very important for us. When I was a Prime-Minister I had meetings with the King of Sweden. As the President of Ukraine joked about defeat of Sweden in the battle of Poltava, should Ukraine be defeated in that war, today, we should have had the same standards of living. Unfortunately, today, we remain much behind Sweden and this country must be for us a standard of democracy and right attitude towards a Man.

N. KARPACHOVA: I would like to introduce you a very interesting person. This is a man representing a non-governmental organization, well-known throughout the world, organization protecting journalists rights, caring for the rights of journalists who left this world against their will. Its name is Reporters without Boundaries with which we have been cooperating for a long time and about which I mentioned in the first annual report of Commissioner for Human Rights. I would like to tender our hearty thanks for cooperation to Robert Menar, Head of this Organization, in particular in connection with a case of Georgiy Gongadze. Unfortunately, Swiss experts confirmed that a body from Tarashcha Village belonged to Georgiy Gongadze. Our final hopes disappeared after this examination, including Gongardze's mother, whose right to be a damaged party I defended in the Pechersk court since she was denied her right by Office of Prosecutor-General. And I as a Commissioner, had to defend her mother's right judicially. Mr. Zverev, I ask you to take the floor.

L. ZVEREV: Mr. Menar gives you his best regards. Unfortunately, he could not have a meeting with us. I am very pleased to represent in Ukraine such organization as Reporters without

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Boundaries. However, I am pleased even more to represent at this round table mass media institution being Executive Director of this organization. This Ukrainian representative office of Reporters without Boundaries is held in respect among many international organizations because just thanks to cooperation of Reporters without Boundaries and mass media institution as a journalist non-governmental organization we have slightly progressed. Mr. Lubchenko, our college, mentioned here some particular cases. Unfortunately, I can extend this list. There are currently 23 criminal and 24 civil cases concerning journalists registered at the Institute of Information. A seven-year experience of the Institute's activities and monitoring held by us showed that journalists should think and understand that journalist freedom cannot be boundless. There must be a limit; and the only limit for journalist's freedom of word may be rights and freedoms of a citizen, instead of regulations, instructions, etc.

Our experience shows that normal cooperation of independent mass media in the act of being formed and independent courts being also in the act of forming involves realization of our common interest to defend human rights and freedoms. On the one hand, we make claims on pleading cases, and on the other hand, courts bring accusations against journalists. However, we must understand that there are forces which are interested in this counteraction. For the sake of interests of our society and our citizens we must move forward and solve issues being on the agenda of our round table. We should carry on a dialogue having respect for independence of each other. I am very grateful to Mrs. Karpachova and to all her personnel for their support. In exceptional cases we apply to Mrs. Karpachova and her Office also assists us, as with Georgiy Gongadze. Nearly two years Reporters and Institute of Information struggled for a just solution of the problem and only after personal interference of Mrs. Karpachova it was settled. Thanks to cooperation of Reporters without Boundaries, Institute of Information and Office of Commissioner for Human Rights in spring, this year, Ukraine has escaped the next scandal around Oleh Liashko at the level of Council of Europe. We worked in coordination, on behalf of the Ukrainian society and Ukrainian authorities and, therefore, we managed to prevent it. Cooperation with the Office of Commissioner for Human Rights helped us to achieve a success in case with Olexandrov. Unfortunately, this court decision was re-examined by Supreme Court. However, Court of Appeal and a judge brought in a verdict of not guilty; and we are happy to know that in Ukraine there are such judges and such a court.

We cooperate efficiently with Mrs. Karpachova's Office and have a common mission in Zaporizhia region concerning four very complicated cases. It does not always happen that our authorities observe the law and our journalists are not necessarily right, but due to such a dialog and such measures we avoid counteraction, cynical conflicts and cynical decisions on the part of authorities; and basic mission of our press is to defend interests of our society.

N. KARPACHOVA: We worked in cooperation and, actually, we did not allow to create in Ukraine a new way of punishing journalists, sentencing them to life imprisonment and, thus, to tame them without killing. I focused attention on this fact in my report during the parliamentary hearings. Actually, we cooperated fruitfully. For instance, the National Union of Journalists, in particular Ihor Lubchenko, made a major effort to assist in case with Ihor Liashko. I would like to remind that People's Deputy who until recent times was a chief editor of newspaper with the largest circulation being very popular in Ukraine today, newspaper Silski Visti has turned eighty years. Mr. Ivan Spodarenko is a Head of Supervision Council of this respected edition. He always took active stand in many cases. We worked together when the newspaper was under a treat of closing and our support helped this newspaper and its staff. And now I would like to give Mr. Spodarenko the floor.

I. SPODARENKO: Today, the most important achievement of democracy in Ukraine is the Office of ombudsman headed by Mrs.

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Karpachova. I thank our deputies for this choice. Unfortunately, many problems fell to our people's lot and it is necessary to solve them; and when we together do our best we can succeed. I believe, today's meeting will be a powerful incentive to the development of democratic Ukraine.

My basic concern is journalist affairs and that is why I work in the Committee of Mr. Udovenko. We work hard and fruitfully. The Committee and editorial staff receives many letters. For instance, Silski Visti receives annually more than 55 thousand letters. Earlier, the main subject of the people's letters was injustice in the world and their household problems and, very seldom, court injustice.

First, people applied to a village Council, then to the Communist Party's District Committee and did not appeal to court. People wrote to newspapers. And it was suffice to publish an article in the newspaper which, as a rule, had a great repercussion. However, a journalist never published any article without checking up every fact and, therefore, nobody brought an action against journalists.

Today, many journalists are taken to court. A plaintiff demands for his/her honor and dignity thousands or even millions. People's life is estimated thousand times less than anybody's dignity and honor. A great warp has happened in the people's conscience. I was in Sweden. As every society they have problems, but every individual here is sure to be defended as a personality. We cannot say it about our country, therefore, our aim is to do our best so that every citizen of our country can feel himself/herself an immune person.

In Ukraine, many journalists have perished. We know it. Derevyanko perished not because he carried on illicit business, he struggled for justice and defended human rights. The same is true for Gongadze. Our newspaper published several serious analytical materials saying that our law enforcement bodies as if hypnotized and see nothing. I believe, it is not difficult to find not only a killer, but also a customer. However, our law enforcement bodies deal with other problems. Cases of Gongadze, Derevyanko, Olexandrov have not been disclosed until now. Why and who can answer this question? I was also attacked and nobody was punished because of top officials being involved in this situation, according to the public prosecutor words. Unfortunately, not all the staff of law enforcement bodies has dignity and honor. I believe, we shall reach the days when we have judges thinking about everyone and observing law. Let us wish Mrs. Karpachova good luck and health. She works hard, she struggles and does her best to help people and encourage those who lost any hope.

M. VOLYNETS, People's Deputy of Ukraine, Head of Ukraine's Free Trade Union Confederation: I also was attacked and facts of assault and battery were never registered. More than two months Office of General Prosecutor has been holding an inquiry and I am not sure they will find those who made an assault upon me. First, I was refused to be examined. And only ten days later under pressure of the Office of General Prosecutor I could undergo examination by medical experts and received confirmation of the fact of slaughter. They presented their apologies explaining that they did not know I was a People's Deputy. And what about common people? I asked them what regulations they were governed in such cases. They replied that they acted in compliance with a regulatory base established in the Soviet times, though it changed in time of independent Ukraine. In reality, in one case they need old regulations, in another - new ones. They act as appropriate.

Moreover, nearly year ago before elections an attempt was made upon my life and it did not happen only due to concourse of circumstances. I know that representatives of law enforcement structures participated in this operation.

My underage daughter was forced to leave for the USA till the end of elections. My son was threatened by mortal danger and he did not go out of doors during half a year.

And what should common people do in

стр. 83


such situations? How can they defend themselves?

It is necessary to join our efforts and adopt the experience of democratic world. Ukraine is the European country; and we should listen to those deputies who know how to make our life as good as in the European countries.

S. TOLSTOV, Director of the Institute for Political Analysis and International Studies:

It is very difficult for me to take the floor after such speeches which, actually, show mental anguish and sufferings of our people. However, I would like to speak, today, about issues we have not yet dwelt on. Listening to the participants on the Ukrainian part I saw that we learned to perfectly describe our problems. We make it to prevent radical, most evident examples of violating the human rights. However, actually, nothing speaks about returning to origin. I can forecast that if situation is just the same, then soon it can change only for the better or it will remain without changes. We can see the same in the economy. If the government does nothing essential to change the situation radically, it does not make serious reforms and changes that require great efforts and maximum political will it will be able to control situation, but it cannot improve it fundamentally.

As to human rights in Ukraine, we should answer which problem is basic and what reflects a state of human rights protection. Since Soviet times the situation has not changed radically. We had Brezhnev's Constitution, but authorities and people acted according to their own concepts having nothing in common with the Constitution. It relates to both the representatives of authorities, state bureaucracy, state employees and politicians in opposition. Today, the Verkhovna Rada is working out regulations concerning officials' examination on state language. They believe, this is a great achievement, though it beats me what this examination can change. If people will come to an official from Luhansk and will speak Russian to him he must communicate with them in Russian.

Officials' examination of the Constitution and current legislation is quite another matter, because they work at the institutions which must act in compliance with the current legislation and defend human rights according to the laws of Ukraine. I am not sure that many of these so-called jurists will pass examination on the Constitution. This problem is much deeper. What can we do? It seems to me that we can do something. For instance, an interesting book was written at request of Mr. Azarov for pupils of junior classes. It is necessary to make contribution in the future for political stability, popularize the Constitution and basic issues of human rights. I welcomed the idea expressed today as to the counter-assignation of the Verkhovna Rada's Commissioner for Human Rights at a new legislative level in the Verkhovna Rada. However, it would be quite advisable to begin a certain revision of legislation, specifically in those aspects that relate to human rights, in order to analyze its compliance to the requirements of the Ukrainian Constitution and to the benchmarks of legislation being now in the act of adoption.

As to traditions of legal culture in Ukraine, today's statements are akin to those expressed in President Kravchuk time saying about stable political tradition originated from Kyiv Rus and as if logically showing us the necessity to strengthen the President's authority. Political culture in Ukraine is very fragmentary, today.

Another problem leading to actual, everyday violation of human rights is corruption being a feature of life, because when people with moderate salary go to doctor, they try to bring him/her a present, on the other hand, when you call a plumber he says himself how much you must pay him for his work, besides his wages.

In Ukraine, there is no legal culture which could dispose people to protect their rights. We must do something. Recently, our authorities have been subject to criticism through the opposition press, accusations against the President being its basic subject. These accusations are built on suspicions which

стр. 84


cannot be, actually, confirmed. Thus, there are many problems, but this is a matter of the future.

Naturally, it is difficult to speak about these things when representatives of law enforcement bodies prosecute the opposition and boldly violate laws. Today, I listened very attentively to Mr. Volynets speech, but he did not say any word that the Barakov mines, as well as other mines are not budget enterprises. Miners come to Kyiv because they are not paid their wages. It relates both to human rights and to legal culture. Situation is so tight that, this year, the government took a decision to ban the mines to supply customers with their products without an advance payment. It can provoke a very acute crisis, therefore, none of the previous Ukrainian governments could do it.

The matter is that, actually, the mines' management obtained income from sales of coal worked by miners who got no wages. Thus, a shadow capital developed. It is difficult for me to understand people's behavior in miner's districts when they come to work and are not paid. For instance, in Rumania political and legal culture is distinctive in that they go on strike in case of detaining their salaries/wages indexing being within 3-5 percent. The government detains indexing to be paid according to the law, people headed by trade unions going into the streets. How can trade unions defend the miners' rights when they permit people to work even in case of three-year arrears in wages? It seems to me, that such an element as feeling of vast masses support is very important. The case in point is legal and political education of people and their involvement in the activities of local government's bodies, local and district councils of People's Deputies which should be involved in this process being closer to an electorate than any governmental institutions. I present my apologies for my deviation from the main subject of our discussion, but I had a longing to say it. I hope that we will adopt Swedish and European experience not partially, but as fully as possible.

M. VOLYNETS: We are speaking about violation of human rights in Ukraine, i. e. rights to work, adequate remuneration of labor, medical aid and education. Social rights have been infringed. Mr. Tolstov spoke about very sensible things, and I fully agree with him. However, I have objection against his vision of situation in coal branch. Mines are state-owned property. Those mediators who use coal and work in a power supply sector do not act as legal partners working in the shadow sector. They do not act as employers, as well. Miners have been fully disoriented. They do not know what partners should they chose. Therein lies the basic problem. I would like to emphasize that in this connection we can find themselves on the threshold of serious shake.

N. KARPACHOVA: I believe that, to a certain degree, everyone is satisfied with our talk, since it was sincere, frank and constructive; it was a talk on business matters. Really, we highly appreciate the unique Swedish experience and study it. However, according to my college, Swedish ombudsman, words, their model of ombudsman cannot be extended to other national ground. We have and, by the way, take into account our national peculiarities as to human rights and freedoms, first and foremost, through Ukraine's institution of ombudsman, its cooperation with the Parliament, non- governmental organizations, mass media and government of our country. We all remember that the first ombudsman's institution in the world was established in Sweden. Soon, we, together, will celebrate its a 200 year-anniversary. However, the first European Constitution was Pylyp Orlyk Constitution and we are proud of this fact. We had to save in the 1996-Constitution being the first Constitution of our independent state the traditions laid in this Constitution. As Commissioner for Human Rights, as commoner and a citizen of Ukraine I fully support those parliamentarians who believe that, today, we should not start this process with the ruination of the constitutional system,

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but with the introduction of changes.

We arrive at mutual understanding of parliamentarians of different political orientation, different ideals due to our incredible efforts. We come to this consensus for the sake of the future of our state and our people. I did and do all my best to preserve the constitutional principles of our state regardless of position I hold. It is, first and foremost, important for preserving human rights and freedoms protection stability. The second chapter of the Constitution is fully devoted to the human rights. It is based on the best world and European standards. We have started a common struggle to observe protection of human rights. Let us be worthy of this struggle. Let us implement the human rights and freedoms in our today's life.

I would like to thank once more, Mr. Peterson, our honored Ambassador of Sweden to Ukraine, for his unique work and cooperation in the field of protection of human rights. I say it frankly, not because I have good human relations with the Ambassador. This man is an outstanding diplomat. When Sweden presided in the European Union, he personally made massive efforts to bring Ukraine to a respective level of the European standards in the sphere of human rights and to help us. He did it not only as a person having more experience, but as a friend, adviser, a man who understands that when human rights are violated in our country (by the way, being a heart of Europe) it concerns not only Ukraine.

Human rights have no boundaries. They are interconnected and interdependent in every country of the world. Mr. Tolstov called us to raise the level of legal and political culture of our society. We should perceive this problem completely. Such institution as ombudsman exists to attract attention of the President, officials, parliamentarians, public and mass media to the human rights on the examples of particular resonance cases. Ombudsmen activities are sometimes called a quiet diplomacy, two thirds of these activities lying not on the surface. And this is right. A real ombudsman should work this way. Only the most resonance cases should be brought to public notice. We try to attract attention to problems existing in our country by way of mass media, non-governmental organizations and through a parliamentary tribune. Today, in this conference hall there are people who are anxious about the problems of human rights. We try to strengthen protection of human rights and freedoms and to develop democracy by help of judicial branch of power, the Parliament, the government and our institution raising respect to human rights, in particular to such a principle as law superiority. And, I believe the Swedish experience is a powerful support for us. In my opinion, it is very rich, instructive and useful. We are ready to continue further our fruitful cooperation for the sake of human rights protection.

Translated by Olha Zahorodnia


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