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Ukraine:the power of people vs the power of government
by Daria Kaleniuk12th August 2010
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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
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Kharkiv2nd June 2010
Demonstration in front of the local
government building
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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
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???? 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?
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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;
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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
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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
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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
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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?
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Trial against plaintiff
• In the same court
• Case heard by another judge
• Media helped to avoid jail
• Decision: guilty. Punishment - fine.
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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
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Trial against plaintiff
• Appeal in Ukraine– lose
• European Court of Human Rights - decisions are obligatory for Ukraine.
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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
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Thank you for attention!