Ukraine:the power of people vs the power of government

by Daria Kaleniuk12th August 2010

Kharkiv the second biggest city in the country

May – 2nd June 2010

Local government builds the road destroying the central city park (Gorkyi Park)…

illegally…

against the will of the people

Kharkiv2nd June 2010

Demonstration in front of the local

government building

Punishment

Against people• Several people had to

pay fine for convicting

misdemeanors (didn’t follow the police order)

• Two park defenders were sent to the jail for 15 days

Against government

Any

???? 3 main questions ????

1. What would people do in the USA?

- file the suits

2. Why Kharkiv local government doesn’t afraid to act illegally?

- people have limited access to governmental information

- people have limited access to fair justice 3. So why Ukrainians don’t like courts?

Someone likes courts!

• Oksana Nesterenko,

- the tutor of Constitutional Law in National Law Academy of Ukraine;

- expert of the Access to Information;

- member of Kharkiv Human Rights Protection group;

Oksana’s case:Access to governmental information,

substantive law

Ukraine

1. Constitution

Article 34, includes 7 exceptions

2. Act about information

3. Bill of Act about access to information

USA

1. Constitution

Amendment 1

2. The Freedom of Information Act

3. Supreme Court decisions

Steps for procedure

Ukraine1. Written Request for

Information – Denial

2. Written request to the higher authority

2. File a Suit

3….

USA1. Fill in e-form

2. Receive the Answer

Jurisdictional differences

Ukraine• Subject-matter

jurisdiction: specialized courts for the suits against government “Administrative”

• Presumption of guilty

USA• No specialized courts• “a party who seeks to

have a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint.”

New York Times Co. v. United

States, 403 U.S. 713  

Ukraine: Step 33….Want to appeal?

Receive the protocol of conducting misdemeanor for contempt of court !

Go to jail for 15 days…

Is it possible in USA?

Trial against plaintiff

• In the same court

• Case heard by another judge

• Media helped to avoid jail

• Decision: guilty. Punishment - fine.

The court creates precedent

In Ukraine

To punish plaintiffs

“Contempt of court” – judges in Kharkiv use this tool for punishing plaintiffs and keeping people in fear.

In USA

To make the rule under the Constitution

Trial against plaintiff

• Appeal in Ukraine– lose

• European Court of Human Rights - decisions are obligatory for Ukraine.

Access to information case

• Appeal – lose

• Now case is in the Higher Administrative Court – the 3d level

• Supreme Court??? -> case law

Waiting for the new law and the Supreme Court cases summary

Thank you for attention!